Administrative Appeals Tribunal of Australia|2008-07-01

Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558 (1 July 2008)

CATCHWORDS - PRACTICE AND PROCEDURE - COMPENSATION -estoppel - claims previously made for compensation arising from employment - whether raising same substantive issues - relevance of principles of res judicata, estoppel, issue estoppel and Ashun estoppel in proceedings of Tribunal - whether application frivolous or vexatious - power of Tribunal to limit evidence on matters canvassed in review of previous decisions and subject of extensive findings of fact - application not dismissed but evidence restricted.

Compensation (Commonwealth Government Employees) Act 1971

Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 353; [1973] HCA 59

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11

Bogaards v McMahon [1988] FCA 161; (1988) 80 ALR 342

Bramwell v Repatriation Commission (1998) 158 ALR 623; 51 ALD 56

Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853

Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1998) 164 CLR 502

Coalcliff Collieries Pty Ltd v Campbell [1964] HCA 53; (1965) 112 CLR 349

Commonwealth v Muratore [1978] HCA 47; (1978) 141 CLR 296

Commonwealth v Sciacca (1988) 17 FCR 476; 78 ALR 279

Commonwealth v Verwayen (1990) 170 CLR 394; 95 ALR 321

Director General Security v Sultan and Another [1998] FCA 1548; (1998) 90 FCR 334

Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13

Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 81 ALR 687; 15 ALD 657

General Steel Industries Inc v Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125

Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100; 67 ER 313

Hoysted v Federal Commissioner of Taxation [1925] UKPCHCA 3; (1925) 37 CLR 290; [1926] AC 155

Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446

JF Keir Pty Limited v Sparks [2008] FCA 611

Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd [2003] FCAFC 18

Lees v Comcare [1999] FCA 753

Midland Metals Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87; 24 ALD 424

Miller v University of New South Wales (2003) 132 FCR 147; 200 ALR 565 [2003] FCA 180

Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193; 92 ALR 93

Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; 62 ALD 673; [2000] FCA 1385

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117; [2002] HCA 11

Minister for Immigration and Multicultural Affairs v Daniele [1981] FCA 212; (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135

Minister for Immigration and Multicultural Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441

Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234

Morales v Minister for Immigration and Multicultural Affairs [1998] HCA 7; (1998) 151 ALR 51

Pitt v OneSteel Reinforcing Pty Limited [2008] FCA 923

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589; 36 ALR 3

Precision Data Holdings Ltd v Wills [1992] HCA 28; (1991) 173 CLR 167; 104 ALR 317

Rana v Chief of Army [2005] FCA 1283

Rana v Chief of Army Staff [2006] FCAFC 63; (2006) 90 ALD 474

Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6

Rana v Military Rehabilitation and Compensation Commission [2005] FCAFC 85

Re "SAN" and Comcare (2004) 81 ALD 149; [2004] AATA 445

Re Hospital Benefit Fund of Western Australia Inc and Department of Health, Housing and Community Service (No 1) [1992] AATA 205; (1992) 28 ALD 25; 16 AAR 158

Re Jebb and Repatriation Commission (2005) 86 ALD 182; [2005] AATA 470

Re Lowth and Comcare [1999] AATA 645

Re Matusko and Australian Postal Corporation (1995) 21 AAR 9; [1995] AATA 14

Re McWilliam and Civil Aviation Safety Authority (2005) 89 ALD 391; [2005] AATA 1148

Re Mr R and Commonwealth of Australia (1988) 15 ALD 167; [1988] AATA 133

Re Proctor and Commissioner of Taxation (2005) 87 ALD 247; 59 ATR 1064; [2005] AATA 389

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

Re Street Nation and Australian Communications Authority (2004) 86 ALD 413; 40 AAR 68; [2004] AATA 1251

Re Williams and Australian Electoral Commission and The Greens (party joined) [1995] AATA 160; (1995) 38 ALD 366

Rodriguez v Telstra Corporation Limited [1999] FCA 1400

Saffron v Commissioner of Taxation (Cth) (No 2) [1991] FCA 363; (1991) 30 FCR 578; 102 ALR 19

Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123; 134 ALR 560; 40 ALD 1

Smith v Caltex Australia Petroleum Pty Ltd (2004) 80 ALD 106; [2004] FCA 480

WE Bassett and Partners Pty Ltd v John Francis Doherty [1997] FCA 715

WJ & F Barnes Pty Ltd v Federal Commissioner of Taxation [1957] HCA 23; (1957) 96 CLR 294

DECISION AND REASONS FOR DECISION [2008] AATA 558

And: MILITARY REHABILITATION AND COMPENSATION COMMISSION

(1) the respondent's application that the applicant's application be dismissed under s 42B(1) of the Administrative Appeals Tribunal Act 1975 be refused; and

(2) under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal will:

(a) inform itself as to the circumstances of and events arising during the applicant's employment and of the conditions that he has suffered apart from paranoid schizophrenia and diabetes by reference to the findings of fact made by the Tribunal in Re Mr R and Commonwealth of Australia proceedings No S86/207, Decision No 4293 and Re "SAN" and Comcare No 2001/378, Decision No [2004] AATA 445; and

(b) not permit the parties to lead further evidence regarding the matters in 1(2)(a); and

(1) by 1 September 2008, the applicant lodge any further medical evidence on which he wishes to rely at the hearing; and

(2) by 17 October 2008, the respondent lodge any further medical evidence on which it wishes to rely at the hearing; and

Mr Rana has applied for compensation under the Safety, Rehabilitation and Compensation Act 1988 (1988 Act) and has done so on two earlier occasions that have led to review in the Tribunal. On both occasions, he has been unsuccessful. On all occasions, he has relied on events that can generally be described as physical, mental and other abuses that he alleged occurred during his employment with the Army. The conditions for which he claimed compensation have varied on each occasion. A delegate of the Military Rehabilitation and Compensation Commission (MRCC) refused Mr Rana's latest claim for compensation on the basis that, in summary, the issues had been the subject of earlier determinations and decisions. When Mr Rana applied to the Tribunal for review of the decision, the MRCC applied for an order dismissing them on two bases. One was that the doctrines of res judicata or issue estoppel meant that the Tribunal had already considered the matter and could not do so again. Alternatively, the MRCC sought an order under s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act) dismissing the application on the basis that they are frivolous and vexatious. I have decided that they should not be dismissed and that the doctrines of res judicata, cause of action estoppel, Anshun estoppel and issue estoppel have no place in proceedings of the Tribunal.[1] Instead, I have decided to rely on s 33(1)(c) of the AAT Act to limit the evidence that can be led regarding the events in Mr Rana's employment to the findings of fact made by the Tribunal in the two previous proceedings.

In this section of my reasons, I will summarise the claims and decisions in chronological order together with a further proceeding that Mr Rana instituted against the University of Adelaide.

4 September 1984: claim for compensation for psychiatric condition

3. The only record that I have of Mr Rana's claim and of its outcome is in the reasons for decision of the Tribunal given on 22 April 1988.[2] That decision concerned reviewable decisions made by the then Commissioner for Employees' Compensation (CEC) under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act) then in force. It appears from the reasons that Mr Rana's claim for compensation made on 4 September 1984 was to the effect:

"... that he suffered from a psychiatric condition (personality disorder and/or adjustment disorder or reactive depression) as a result of his employment with the Australian Army. In particular, he alleges that during his employment in the Army which began on 14 October 1980 and ended with his discharge on 13 July 1982, he was subjected to physical, emotional and sexual harassment because of his race, creed and colour. ...'[3]

4. Mr Rana's also made a second claim for compensation that was dealt with by the Tribunal but it was for a condition not relevant in this case.[4]

5. On review, the Tribunal decided that Mr Rana had a personality disorder, although not of a high order, before he migrated to Australia. On his arrival in Australia, Mr Rana faced a number of stresses both in his personal life and during his Army service. The Tribunal found that:

"... All of these stresses culminated in an aggravation of an adjustment disorder and reactive depression of which Army service was but one component.

The Tribunal does not consider that the Army service caused the applicant's personality disorder or adjustment disorder, or reactive depression but finds that such adjustment disorder and reactive depression were aggravated by the conditions of his employment.

However, the Tribunal is not persuaded that since April 1985, the applicant has continued to suffer from an aggravation of an adjustment disorder or reactive depression due to his Army service. Certainly the applicant's employment with the Army was a contributing factor to the aggravation of this disorder within the meaning of s 29 of the Act. But in accepting the medical evidence ..., the Tribunal finds any continuance symptomatic of a disorder to be probably the result of other life stress factors currently operating and not those relating to the applicant's period of Army service."[5]

29 August 2001: claim for compensation and rehabilitation in respect of psychotic paranoid reaction resulting in a mental condition

6. I do have a record of Mr Rana's claim dated 28 August 2001 and lodged on the following day as it led to his making an application to the Tribunal. It appears in the documents lodged under s 37 of the AAT Act (T2005/58 documents). He claimed compensation for "psychotic paranoid reaction", which he described as a "mental condition".[6] Mr Rana answered the questions set out in the claim form. His answers were to the effect that he had sustained the injury when performing military duties by reason of "emotional and physical harassment by the other Defence Force members."[7] All of his interactions as a storeman with others contributed to his illness. In its decision in reviewing the reviewable decision that was ultimately made, the Tribunal noted that Mr Rana had:

"_... subsequently asserted that the 'correct diagnosis' should have been '_post-traumatic disorder with features of paranoid pscizonphrenia (sic)'...."[8]

7. The delegate refused Mr Rana's claim for a psychiatric condition, however described arising out of his Army service between 1980 and 1982. The delegate referred to Mr Rana's previous claim for "acute depression" that he had lodged on 4 September 1984 and stated that the two claims dealt with the same issues. The Tribunal had reviewed the decision at the time and Mr Rana had not produced any further evidence. Therefore, the findings of that Tribunal remained persuasive.

8. Comcare, which then had responsibility under the 1988 Act, submitted that the Tribunal did not have jurisdiction to review the decision because, in order to do so, it would have to revisit issues that had been the subject of the Tribunal's decision in 1988. At a directions hearing, Deputy President Jarvis and I heard submissions from both parties on that matter. We decided that the Tribunal:

"... had jurisdiction to hear the application for review of the respondent's decision to refuse the applicant's claim for compensation in relation to the conditions of psychotic paranoid reaction and post traumatic stress disorder ('PTSD') on the basis that the 1988 Tribunal decision did not determine the applicant's entitlement to compensation for those two conditions. The Tribunal further directed that the application for review was to be limited to the conditions of paranoid reaction and PTSD. ..."[9]

9. The hearing was conducted by Deputy President Jarvis and Dr Eriksen, Member, on the basis that it was limited to the two conditions and the Tribunal decided that Comcare's decision to refuse Mr Rana's claim was correct and that he was not entitled to compensation in respect of them.[10] In doing so, they were not reasonably satisfied that Mr Rana's army service contributed to the development of paranoid psychosis.[11] With regard to PTSD, they did not accept that he had suffered the symptoms necessary to support its diagnosis in his case.[12] Neither his paranoid psychosis nor his PTSD had been aggravated by Mr Rana's army service.[13] They were not satisfied that Mr Rana's army service caused or contributed to his condition of paranoid psychosis. That was a condition that they found he developed either during or soon after his army service. It developed further over the years until its diagnosis in 1998.[14]

10. In the course of its consideration, the Tribunal concluded:

"We referred in paragraph 98(e) above to the Tribunal's findings in its 1988 decision to the effect that the applicant was subjected to physical assaults or racial vilification or verbal abuse during his army service. The proceedings before us did not focus on the question of whether these events occurred, and this issue clearly would not have affected the opinion of Dr Davis, which we have accepted in preference to that of Dr DePasquale, because he took into account the applicant's history that he had been subjected to the sexual assaults as well as non-sexual physical abuse and verbal abuse. We refer in particular to his evidence at pages 7.7 to 8.2 and 10.1 to 10.4 of the transcript of 04.09.03. We are inclined to accept that the applicant was subjected to certain non-sexual assaults and abuse as found in the 1988 decision, but we find on all of the evidence before us that these events did not have the effect that the applicant's employment contributed to the conditions asserted by the applicant in the present proceedings."[15]

11. Mr Rana lodged an appeal to the Federal Court from the decision of Deputy President Jarvis and Dr Eriksen. It was heard by Finn J, who dismissed it on 12 January 2005.[16] His Honour said that he could not discern any error of law that should be decided in Mr Rana's favour and added:

"... His claims, in the main, do not rise above what are in substance challenges to the merits of individual findings and conclusions notwithstanding that the language in which those challenges are cast often reflects well-known grounds of judicial review. I need only reiterate that any court reviewing a decision of the Tribunal cannot turn 'a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision': Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1966) 185 CLR 259 at 272."[17]

12. A Full Court of the Federal Court constituted by Marshall, Mansfield and Stone JJ dismissed Mr Rana's appeal from the judgement of Finn J on the basis that there was no error of law disclosed in his judgment.[18]

13. Mr Rana made an application to the High Court. At a hearing on 4 May 2007, it was treated by Crennan J as an application for orders nisi for prerogative writs. Among the grounds on which Mr Rana claimed for relief on bias, surprise, undue intervention, irrelevant considerations, denial of natural justice, jurisdictional error, factual errors, unreasonableness, collusion and factual reasons. Crennan J found that neither Mr Rana's submissions nor the material that he had filed supported any arguable ground for relief and dismissed his application.[19]

November and December 2004: hearing of evidence in Rana v University of Adelaide

14. Mr Rana brought proceedings against the University of Adelaide and it would appear from the later judgment of Lander J in Rana v University of Adelaide[20] that the earlier proceedings were settled between them. Whatever the outcome, a transcript of part of the evidence appears in the material I was given. That is a transcript of the evidence given by Dr Bal Krishna Jha, who is a senior consultant psychiatrist at the Royal Adelaide Hospital.

15. Dr Jha answered various questions and, in doing so, made a number of points. DSM-IV, which is the American Diagnostic and Statistical Manual of Mental Disorders, recognises paranoid schizophrenia. People who suffer from paranoid schizophrenia may have a personality disorder but the two are different. A personality disorder is not a psychosis. Despite that, it is most likely that a person with paranoid schizophrenia will have a paranoid personality disorder and that, under stress, the paranoid personality disorder will bloom into full paranoid schizophrenia. In Dr Jha's opinion, Mr Rana suffers from paranoid schizophrenia and also has a paranoid personality disorder.[21] In answer to Mr Rana, Dr Jha said that his:

"You actually - from primary school go to secondary and they you go to the college. So similarly your illness started with adjustment problems, personality disorder, delusional disorder and then went into paranoid schizophrenia."[22]

16. As to the cause of Mr Rana's condition, Dr Jha said that it first became apparent when he was in the Army. He had read the reports of proceedings in the Tribunal and he thought that Mr Rana "... probably ... had a very horrible time in the Army."[23] In response to Lander J, Dr Jha said:

"It is possible that he might have the predisposition to mental illness, but that become [sic] quite evident when he was subjected to various types of physical, emotional and sexual abuses in the army."[24]

"... it is likelihood that whenever you'll be subjected to any stress - any type of distress in your personal life, in your academic life, in your work situations, wherever it is - you know, it is likely that the illness can flare up."[25]

30 August 2005: claim for stress induced diabetes

17. Mr Rana made a claim dated 30 August 2005 in respect of "stress induced diabetes".[26] He stated in that claim that he first noticed the disease on

29 August 2005, which was the day on which he first received treatment for it. When asked what aspects of his employment contributed to his disease or illness, Mr Rana wrote:

"Stress induced paranoid schizophrenia and diabetes from physical, mental and other abuses."[27]

In a letter dated 6 October 2005 to the MRCC, Mr Rana expanded on his understanding of the cause of his diabetes. He provided an:

"... additional report of Dr Henry Fellner to link the causation with the effect. The doctor indicates that the depression is related to Paranoid state and thus aggravating the pancreas and thus troubling me via the diabetes."[28]

18. On 27 July 2006, Mr Ontong, the Director, Appeals, MRCC, refused Mr Rana's claim saying:

"Your claims for psychiatric conditions (however described) arising out of your Army service have been considered previously by the Administrative Appeals Tribunal ('AAT') in matters No. S86/207 and S2001/378. You have also appealed the decision of the AAT in matter no. S2001/378 to the Federal Court and the Full Court of the Federal Court, both of which appeals were dismissed. I note that I have already refused to deal with your additional claim for Paranoid Schizophrenia in my letter to you dated 19 September 2005.

I therefore also find that in so far as your claim for diabetes is reliant on your claim that you have a psychiatric condition arising from your military service, the claim is denied on the basis there is no liability for a psychiatric condition arising from your military service."[29]

19. On 16 August 2006, Mr Rana lodged an application in the Tribunal for review of the decision[30] but then, as he should have, asked the MRCC to reconsider its decision when he sent it an email on 28 September 2006.[31] The MRCC gave Mr Rana an opportunity to provide evidence in support of his claim and, in particular, any opinion by his treating medical practitioner with regard to how his diabetes is related to his military service.[32] It extended the time within which Mr Rana could provide that medical evidence both voluntarily and at his request. Mr Rana provided some medical evidence including a document described as a "Medical note" from Dr Miller, who is a consultant physician. In his Medical note, Dr Miller stated that Mr Rana had questioned whether there was a possible link between the medication he had been receiving for his psychiatric condition and his diabetes. He addressed that question.[33]

20. In a letter dated 9 May 2007, a delegate of the MRCC advised Mr Rana that it had affirmed the determination dated 27 July 2006. After reciting the medical evidence, the letter continued:

"Having taken the above medical documentation into consideration, neither Drs Fellner or Miller refer to the cause of your diabetes condition, and more importantly, any link between your diabetes condition and your military service. I note that in the determination dated 27 July 2006 reference was made to two letters from Dr Fellner dated 29 August 2005 and 01 September 2005 respectively, which also did not provide any link of your military service making a material contribution to your diabetes condition.

While you assert that the your diabetes condition was caused by your stress induced paranoid schizophrenia condition, which you contend was caused by your military service, this Department does not accept liability for the schizophrenia condition. Accordingly, as no liability exists for the schizophrenia condition, I cannot accept liability for your diabetes condition.

I further note that your psychiatric conditions which you contend arose out of your military service have previously been considered (and liability disallowed) by the Administrative Appeals Tribunal (AAT) in matters S1986/207 and S2001/378. I note that your appealed the AAT decision of the matter S2001/378 to the Federal Court and the Full Court of the Federal Court, and more recently the High Court of Australia, all of which have been dismissed.

I also note that in his letter dated 19 September 2005, Mr Paul Ontong, Director of Appeals, Military Rehabilitation and Compensation Commission (MRCC), advised that your claim for szhizophrenia is essentially the same as that considered by the AAT in S1986/207 and S2001/378, and therefore would not be further considered by the MRCC.

In conclusion, while I find that your claim for diabetes is dependent on your assertion that you developed a psychiatric condition during the course of your military employment, the claim must be denied on the basis that no liability exists for a psychiatric condition arising from your military service."[34]

21. On 14 May 2007, Mr Rana lodged an application in the Tribunal seeking review of the MRCC's reviewable decision.[35]

14 September 2005: applications under ADJR Act regarding entitlements under the DFDRB Act

22. On 14 September 2005, Mansfield J gave judgment on two applications that Mr Rana had made under the Administrative Decisions (Judicial Review) Act 1977 regarding his claim for benefits under the Defence Force Retirement and Death Benefits Act 1973. A delegate of the Chief of Army decided that, at the time of Mr Rana's discharge from the Army, grounds did not exist whereby he could be discharged because of physical or mental incapacity. Mr Rana relied on various grounds but Mansfield J dismissed the applications.[36] The Full Court dismissed an appeal from that decision.[37]

23. On behalf of the MRCC, Ms Bean submitted that I should have regard to the principles of estoppel and dismiss Mr Rana's latest application on the basis either that his claim for paranoid schizophrenia was considered by the Tribunal in 2004 or that the issue of causation is, in substance, the same as that considered by the Tribunal in its earlier decisions dated 1988 and 2004. She referred to the authorities of Re Quinn and Australian Postal Corporation,[38] Re Hospital Benefit Fund of Western Australia Inc and Department of Health, Housing and Community Service (No 1)[39] and Re Matusko and Australian Postal Corporation.[40] Before I look at these authorities, I need to consider for a moment what is meant by the notion of estoppel and then the context of merits review in which I am considering its application.

24. The notion of estoppel, or issue estoppel as it is sometimes described, has been explained by Dixon J in Blair v Curran[41]:

" 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. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared."

25. More recently, the Privy Council succinctly specified the three essential elements that must exist if the doctrine is to apply:

"(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies."[42]

"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 on 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[43] 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.

In the phraseology of Lord Shaw 'a fact fundamental to the decision arrived at' in the former proceedings and the 'legal quality of the fact' must be taken as finally and conclusively established (Hoysted v Commissioner of Taxation (2))[44]. But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tend to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation."[45]

26. In Hoysted v Federal Commissioner of Taxation[46], the Privy Council explained the same principle in a different way by setting out what has been settled:

" ... first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle-namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties' rights to rest applies and estoppel occurs."[47]

27. It may be relatively easy to state the principle but, as Dixon J said:

"The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order. ..."[48]

28. The Privy Council in Hoysted v Federal Commissioner of Taxation gave an illustration of the application of issue estoppel:

"In Outram v Morewood_[49]__, an action of trespass over a certain vein of coals lying under the close of the plaintiff, it was held that if a verdict be found on any fact or title, distinctly put in issue in an action of trespass, such verdict may be pleaded by way of estoppel in another action between the same parties or their privies, in respect of the same fact or title._

In a previous action an issue was found for the plaintiff and against the wife, one of the two subsequent defendants, her husband being the other defendant with her in the action under decision. Lord Ellenborough C.J. said(2)[50]: 'The operation and effect of this finding, if it operate at all as a conclusive bar, must be by way of estoppel. If the wife were bound by this finding, as an estoppel and precluded from averring the contrary of what was then so found, the husband, in respect of his privity, either in estate, or in law, would be equally bound.' And in subsequent portions of his judgement (3)[51] he spoke as follows: 'A finding upon title in trespass not only operates as a bar to the future recovery of damages for a trespass founded on the same injury, but also operates by way of estoppel to any action for an injury to the same supposed right of possession. . . . . . And it is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel. The recovery of itself in an action of trespass is only a bar to the future recovery of damages for the same injury: but the estoppel precludes parties and privies from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them, or by those to whom they are privy in estate or law, has been, on such issue joined, solemnly found against them."[52]

29. In Port of Melbourne Authority v Anshun Pty Ltd,[53] Gibbs CJ, Mason and Aickin JJ said:

" The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding."[54]

30. Their Honours referred with approval to a passage from the dissenting judgment of Fullagar J in Jackson v Goldsmith[55] in which he explained the rule as to res judicata, which may also be referred to as "cause of action estoppel"[56] in the following terms:

"... where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims 'interest republicae ut sit finis litium' and 'nemo debet bis vexari pro eadem causa'."[57]

31. In Port of Melbourne Authority v Anshun Pty Ltd, Gibbs CJ, Mason and Aickin JJ also referred to the principle explained by Sir James Wigram VC in the much earlier case of Henderson v Henderson.[58] Sir James Wigram had taken the notion of res judicata a step further when he said:

"... where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."[59]

32. Gibbs CJ, Mason and Aickin JJ adopted these principles but recast them slightly to emphasise that notion of reasonableness to which Sir James Wigram had also referred. They said:

" In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances ... why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings ...".[60]

Anshun estoppel and res judicata; a variation on a theme

33. It is apparent from the statements of principle themselves that the principles referred to in Henderson v Henderson and adopted by the High Court in Port of Melbourne Authority v Anshun Pty Ltd are different facets of the same crystal. The explanation of the underlying principles in the judgment of Brennan J in the same case makes the point even more clearly. His Honour said:

"... Imprecision in the meaning of cause of action tends to uncertainty in defining the ambit of the rule that a judgment bars subsequent proceedings between the same parties on the same cause of action. The foundation of the rule ... is the merging of the cause of action in the judgment. ...

If cause of action is taken to mean a right, the rule is stated in terms of the passing of the right into judgment, and the rule precludes a party bound by the judgment from maintaining against another party bound by it any subsequent proceeding to recover a judgment giving a remedy to enforce or to compensate for an infringement of that right. The rule does not preclude litigation seeking a remedy to which a party is entitled in virtue of a different right from that which was first put in suit provided that the facts which support the right sued upon in the second action are not the same facts as those supporting the right which passed into the first judgment ...

If a cause of action is taken to mean the facts which support a right to judgment, the rule of res judicata bars and action for relief founded upon the same facts as those upon which an earlier judgment was recovered, though the right sued upon in the second action is different from the right which passed into or was negated by the earlier judgment....

When the same facts support rights to different remedies against the same defendant, the plaintiff cannot recover a judgment giving a remedy in respect of more than one right ... He may pursue his remedies concurrently in the same action, but he is put to his election before judgment as to which remedy he shall have. And when judgment is entered, all of the rights which he might have claimed in that litigation are merged in the judgment. ...

The party entitled to relief cannot improve his position by bringing separate actions. Though he may elect between inconsistent remedies pursued in the one action, or between the actions to be pursued in order to recover a judgment giving the remedy he chooses, the merger in the judgment first recovered of a right to another remedy takes effect by operation of law. When those rights (or causes of action) are extinguished, no further litigation may be pursued to recover a second judgment upon them.

Accordingly, inconsistency between judgments against the same defendant is avoided by the merger in the judgment first recovered of the right to the remedy thereby given and of all other rights which arise on the same facts. ..."[61]

34. The rationale for Anshun estoppel was explained by Madgwick J in Stuart v Sanderson:[62]

" _The principle is thus not founded only upon the need to restrain costs between parties in dispute, although that is one of its purposes (_Bryant [v Commonwealth Bank [1995] FCA 1299; (1995) 57 FCR 287] at 298, and Trawl Industries v Effem Foods [1992] FCA 272; (1992) 36 FCR 406 at 423 per Gummow J). It is also founded upon the need to avoid 'conflicting judgments (Anshun at 603-604), to ensure finality of litigation _(_Anshun at 609, per Brennan J, and Bryant _at 299), to prevent parties from gaining an advantage in the use of the court's time ... and, in the more global expression of Murphy J 'to preserve the orderly administration of justice' (_Anshun at 605); that expression might include, for example, the maintenance of the appearance of good order, so as to sustain public confidence in curial disposition of disputes."[63]

35. In Blair v Curran, Dixon J distinguished between res judicata and issue estoppel by saying:

"... in the first the very right or cause of action claimed or put in suit has in 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 of law is alleged or denied the existence of which is a matter necessarily decided by prior judgment, decree or order."[64]

36. As Graham J said in JF Keir Pty Ltd v Sparks:[65]

" Unlike res judicata, issue estoppel may arise when the cause of action in each proceeding is entirely different (per Merkel J in Somander v Minister for Immigration and Multicultural Affairs ... 92000) [2000] FCA 1192; 178 ALR 677 at [69])."[66]

37. In Miller v University of New South Wales,[67] Ryan and Gyles JJ reviewed a large number of authorities. I will return to their judgment but observed "... that it is difficult, if not impossible, to reconcile all that has been said in this array of authority."[68] That may well be the case but, in an attempt to achieve some reconciliation, I have examined the previous authority under separate headings. Those headings relate to some of the various situations in which reference is made to estoppel, issue estoppel, cause of action estoppel, res judicata or Anshun estoppel. There are variations among those situations that can, in most instances if not all, be reconciled with the final decision reached in the particular case. The difficulties in reconciliation come in attempting to reconcile the authorities to which some of the authorities refer for they do not distinguish among the different situations. Perhaps the difficulties are mine alone but, if only to sort out my own thinking in order to decide this case, I have categorised the authorities and attempted an analysis by reference to those categories.

Relevance and status in subsequent court proceedings of a decision made by a body other than a court

38. This was the situation that faced the High Court in Administration of Papua New Guinea v Daera Guba.[69] In 1886, officers of the Crown purported to purchase 95 acres of land at Port Moresby from the then owners. Most of that land subsequently became Crown land by virtue of an Order in Council. In 1954, a Land Board was established under s 9 of the Land Ordinance 1911 to decide disputes regarding the ownership of the land. The Land Board made a determination in 1954 but, in 1966, claimed to be entitled to part of the land. Barwick CJ, with whom McTiernan J agreed, described the task given to the Land Board and the way it was required to undertake that task:

"... Power was given to the Board to decide ownership in the case of all disputes on that question. 'All' in this context means 'any' dispute where a Papuan was a claimant. The significant point of s. 9 is that the power is to appoint a Board which is to decide. The obligation to act judicially comes from the power to decide the rights of individuals. The Board was, in my opinion, quite clearly a tribunal which, having power to decide such rights, was a body to which the prerogative writs would have gone. It was bound to observe the rules of natural justice, even though it might act according to equity and good conscience and not be bound by rules of legal procedure. Though freed of technical rules the Board was bound by legal principles in the decision of such a question as the ownership of land. It was not given power to award land to a person who in its opinion did not own it. Its task, if it was to decide ownership, was to ascertain the existing facts and apply the existing law to those facts in order to decide who did own the land. That, to my mind, is clearly work of a judicial nature and a decision as to ownership must of necessity, subject to appeal, be final as between the parties before the Court or who, being duly notified, could have been before it. I am unable to perceive what relevance questions of judicial power in the constitutional sense have in this connexion. What is central to the Board's power is the power to decide. It may well be that in a system where a separation of powers existed that function could be classed as an exercise of judicial power. But it is quite immaterial in the present connexion to consider such a question or decided cases which deal with it. In my opinion, the purpose of appointing a Board under s. 9 was clearly to resolve a dispute and lay to rest the question of ownership of land to which a Papuan laid claim. It is to be observed that the consequence of the Board's decision was an entry on a register with the intention of giving absolute finality to the matter. ... In my opinion, the decision of the Board was binding on the parties to it, their privies and upon those notified of the hearing with opportunity to make their claims, and to that extent upon the Land Titles Commission in considering a claim to the same land by one of those parties or a privy of one of those parties or by a person hav...[ing] had the opportunity of claiming or of being heard."[70]

39. Barwick CJ "... suppose[d] there could not be a better justification for resort to the principle of estoppel than the present case."[71] In a separate judgment, Menzies J also agreed with Barwick CJ and, except with respect to an issue relating to the extent of the initial purchase of land, also with Gibbs J. Gibbs J approached the issue of estoppel from a slightly different angle although the outcome was the same. He began with a discussion of res judicata and then considered the breadth of its application:

"... In many of the authorities that discuss this form of estoppel, it is said that the estoppel is brought about by a judicial decision, pronounced by a judicial tribunal. Thus in a recent case, Carl Zeiss Stiftung v Rayner & Keller Ltd (No. 2) ...[[72]], Lord Guest said:

'The rule of estoppel by res judicata, which is a rule of evidence, is that where a final decision has been pronounced by a judicial tribunal of competent jurisdiction over the parties to and the subject-matter of the litigation, any party or privy to such litigation as against any other party or privy is estopped in any subsequent litigation from disputing or questioning such decision on the merits (Spencer Bower on Res Judicata, p. 3).'

The use of the phrase 'judicial tribunal' in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative ... The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of the parties, and it only has temporary authority to decide a matter ad hoc ..."[73]

40. Gibbs J considered whether estoppel arose in the case before him having regard to the principle expressed:

" In Carl Zeiss Stiftung v Rayner & Keller Ltd (No. 2) ... [[74]], Lord Reid said that it 'is clear that the earlier judgment relied on must have been a final judgment, and that there must be identity of parties and of subject-matter in the former and in the present litigation'."[75]

41. More recently, the Full Court considered issue estoppel in Miller v University of New South Wales.[76] Dr Miller alleged in the Australian Industrial Relations Commission (AIRC) that the termination of his employment had been harsh, unjust or unreasonable and in contravention of s 170CK of the Workplace Relations Act 1996 (WR Act). The AIRC dismissed his application and the Full Bench dismissed his appeal. Before his application for leave to appeal to the Full Bench, Dr Miller had applied to the Federal Court under s 413 of the WR Act for an interpretation of the certified agreement and a declaration that the University of New South Wales (University) had breached it when it terminated his employment. The University sought an order staying the Federal Court proceedings on the basis that Dr Miller's application raised the same issues as were raised before the AIRC so that the causes of action on which he relied were merged in the decision of the Full Bench of the AIRC. The University also submitted that the proceedings amounted to an abuse of process as they constituted an attempt to re-litigate a case already decided by the AIRC in a manner adverse to Dr Miller.

42. In their joint judgment, Ryan and Gyles JJ alluded to res judicata and then canvassed the authorities extensively under the heading of issue estoppel. Those authorities included many of those to which I refer in these reasons including Minister for Immigration and Multicultural Affairs v Daniele,[77] Blair v Curran, Administration of Papua New Guinea v Daera Guba, WJ & F Barnes Pty Ltd v Federal Commissioner of Taxation,[78] Bogaards v McMahon[79] and Commonwealth v Sciacca[80]. They referred also to a number of other cases.

43. Among them was Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd,[81] in which the Full Court of the Federal Court considered whether the effect of a finding by the Full Commission of the AIRC was that Mr Kowalski was estopped from pursuing relief in the Federal Court. The AIRC's findings concerned his claim that he be reinstated and compensated on the grounds that the termination of his employment had been harsh, unjust or unreasonable or discriminatory and had been effected without written notice to him. Mr Kowalski regarded himself as bound by the AIRC's determination but pursued other claims under the relevant award and Superannuation Deed. The AIRC had proceeded on the basis that his date of termination was one date but Mr Kowalski claimed in the Federal Court that it was a much later date. The Full Court said:

"12. Mansfield J held that the effect of that finding by the Full Commission was that the appellant was estopped from challenging its finding in these proceedings. We are not prepared to do so. It is clear that a party will be estopped from arguing that which has already been decided against him or her, even by a different court. This can also extend to decisions by a tribunal where such a tribunal has the capacity to make final and binding decisions: see Administration of the Territory of Papua New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353. The issue raised in this case is whether there can be any issue estoppel in respect of the determinations of a Commonwealth administrative body. Such bodies cannot exercise the judicial power of the Commonwealth. Can they nevertheless make a determination that is sufficiently 'final' and 'determinative' to give rise to an issue estoppel? There are two chains of authority. The first denies that they can. The relevant cases are discussed by Weinberg J in Bramwell v Repatriation Commission (1998) 158 ALR 623 at 635-637. The second says that they can, particularly where the power being exercised is very similar to judicial power: see Branson J in Miller v University of New South Wales [2002] FCA 882 at [68]- [77].

13. It is unnecessary for us to resolve these differences. What is absolutely clear is that the decision of an administrative tribunal in respect of a 'jurisdictional fact' is neither conclusive, nor binding: see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179. The decision in this instance was given in relation to what was clearly a 'jurisdictional fact' i.e. the question whether the termination of employment was on or before or was after 30 March, 1994. The decision of the AIRC on that matter could not be conclusive. Consequently the decision of the AIRC of 1 March, 2002 that the contract of employment was terminated on 16 March, 1994 does not have the effect that the appellant can not argue to the contrary in this Court. There is no issue estoppel."

44. This passage has caused me some concern if it is intended to mean that there is a conflict between the two chains of authority. On reading them, it seems to me that there is not for they are dealing with different matters. Taking first the judgment of Branson J in Miller v University of New South Wales, it was the judgment that was the subject of the appeal being considered by Ryan and Gyles JJ with Gray J. Its subject matter was that of the relevance and status of a determination by the AIRC and a finding made in the course of reaching that determination in subsequent and separate proceedings in the Federal Court. In Bramwell v Repatriation Commission,[82] Weinberg J had been concerned with a very different question. That question was whether the Tribunal was estopped from considering an issue that had been decided by the Veterans' Review Board (VRB). The Tribunal had received an application to review the VRB's decision and was reviewing that decision as it was required to do under the Veterans' Entitlements Act 1986.[83]

45. I also note that the issue with which their Honours were concerned was different from that being considered in either line of authority. They were concerned with whether the decision of an administrative tribunal in relation to a jurisdictional fact could be conclusive or binding. That brings into consideration different issues. They are issues that were considered by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj.[84] Although they were issues relevant in my decision in Re McWilliam and Civil Aviation Safety Authority[85] and I adopt my reasoning in that case, jurisdictional facts are not in issue in this case. Therefore, I will not address them further.

46. In Miller v University of New South Wales, Ryan and Gyles JJ also referred to the judgment of the Full Court of the Federal Court in Sande v Registrar, Supreme Court of Queensland.[86] On my analysis of the authorities, this is a case that more readily fits under the heading of "Previous proceedings in a court between parties to proceedings in the Tribunal", where I have placed the case of Smith v Caltex Australia Petroleum Pty Ltd,[87] which relies on Sande v Registrar, Supreme Court of Queensland.[88] Alternatively, it could come under the heading of "Judgment and findings of fact made by a court in relation to one or both of the parties to a proceeding in the Tribunal."[89] I return to Sande v Registrar, Supreme Court of Queensland below.[90]

47. In drawing their consideration together, Gyles and Ryan JJ returned to the question that they had to consider: the nature and effect of the determination by the AIRC on the proceedings in the Federal Court. They expressly put to one side cases which they described as "... truly administrative in the sense that it stands in the shoes of the original administrative decision-maker, and has power to substitute its own decision for the original decision ...".[91] Of bodies other than those that are truly administrative, their Honours said:

" While estoppels may arise from decisions of bodies other than superior courts of record, and the language of res judicata, including cause of action estoppel and issue estoppel, is used in this connection, the starting point is to decide precisely what jurisdiction the body is exercising ..."[92]

48. They adopted what Jordan CJ, with whom Halse Rogers and Maxwell JJ agreed, had said in Ex parte Amalgamated Engineering Union (Australian Section);

" But in order that a judicial decision may involve an estoppel as to the matter decided, it is necessary that the tribunal should possess jurisdiction to decide the matter conclusively and for all purposes between the parties, and not merely incidentally and for a limited purpose. In the case of a superior Court, difficulties can seldom arise as to whether estoppel attaches to matters which have been expressly or impliedly decided for the purpose of the direct and immediate decision. This is by reason of the rule that "nothing shall be intended to be out of the jurisdiction of a superior Court, but that which specially appears to be so". But difficulties do occur in the case of subordinate tribunals. Where these have been invested with a general, though limited jurisdiction, matters incidentally decided are res judicatae if they are comprised within the limits of the general jurisdiction of the tribunal. Where, however, a special jurisdiction is conferred upon a subordinate tribunal to decide some one particular class of matter, the conferring of jurisdiction, although it authorises the tribunal to decide any other matters so far as may be necessary for the exercise of the jurisdiction so conferred, is not regarded as investing it with jurisdiction to decide those matters between the parties conclusively and for all purposes. Such matters are collateral to the matter as to which jurisdiction is conferred. In a particular case it may appear from the Statute conferring the jurisdiction that it is intended that the tribunal shall have jurisdiction to determine the collateral matter only provisionally and subject to control by means of the prerogative writs. Or it may appear to be intended that the tribunal is to determine the collateral matters conclusively so far as any control by superior Courts is concerned. But unless an intention appears to confer jurisdiction to determine the collateral matters inter partes conclusively and for all purposes, a decision of the tribunal upon a collateral matter lying outside its special jurisdiction creates no estoppel, notwithstanding that the matter was raised and that it was necessary to form an opinion upon it for the purpose of deciding the matter in which the tribunal is invested with special jurisdiction. The reason is that no estoppel can arise from a decision by a tribunal of limited jurisdiction of a matter lying outside its jurisdiction."[94]

49. Applying that reasoning to the issue before them, Ryan and Gyles JJ concluded that:

" In our opinion, the only matter which is committed to the decision of the AIRC in the sense explained by Jordan CJ is whether the termination was harsh, unjust or unreasonable. It may be accepted, for the purposes of argument, that the AIRC decision conclusively decided that the termination was not harsh, unjust or unreasonable. It is that which is given finality by s 170CI, subject to s 170JD [of the WR Act]. Any findings made by the AIRC in the course of reasoning towards the ultimate decision do not give rise to any issue estoppel."[95]

The consequence of this conclusion was that steps such as the following "... were merely steps along the way to the value judgment which had to be made in exercise of the only jurisdiction given to the AIRC, and could give rise to no estoppel ...":[96]

"... that the direction given to the appellant to assume the disputed duties both reasonable and lawful, that there was conduct on the part of the appellant amounting to serious misconduct, namely, conduct constituting a serious breach of contract in evincing an intention no longer to be bound by the contract, and that there existed a valid reason under the certified agreement for the termination of the appellant's employment by the respondent. ..."[97]

Relevance and status in subsequent court proceedings of finding of fact or determination of an issue made by body other than court in reaching its decision

50. In Midland Metals Overseas Limited v Comptroller-General of Customs,[98] Hill J considered whether a decision of the Tribunal would give rise to an issue estoppel. His Honour was considering an application under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to consider a decision by a delegate of the Comptroller-General of Customs (Comptroller-General) to accept an application under s 269TB of the Customs Act 1901. The application had been made for the publication of a dumping notice in respect of certain goods being exported to Australia by Midland Metals Overseas Limited (Midland Metals). The goods were shipped either directly from Korea to Australia or indirectly via Singapore. Earlier, the Comptroller-General had determined that the customs value of identical goods was to be calculated on the basis that they were exported from Singapore. The Tribunal reviewed that determination and substituted a decision that the calculation was to be made on the basis that the place of export was Korea and not Singapore. During the hearing of the application for review under the ADJR Act, Midland Metals submitted that the Comptroller-General was bound by the determination made by the Tribunal that the goods were imported from Korea and not from Singapore.

" First, it is clear that the proceedings of the Tribunal, and in particular its findings of fact, do not constitute an issue estoppel on any issue, even if the parties to the Tribunal proceedings are regarded as the same parties as are presently before the court. The Administrative Appeals Tribunal is an administrative body. When its jurisdiction is enlivened it is empowered to review an administrative decision made under some other enactment: s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). In matters before it, its proceedings are to be conducted with a minimum of formality and with due expedition. It is not bound by the rules of evidence: s 33 of the AAT Act. In reviewing decisions referred to it, the tribunal is empowered to exercise itself all the powers and discretions conferred upon the decision-maker: s 43(1) of the AAT Act. If the tribunal so decides after hearing the review, it may affirm the decision under review, vary it or set aside the decision and either itself make a decision or remit the matter back to the original decision-maker for reconsideration: s 43(1).

Where, as occurred in the present case, the decision is remitted to the decision-maker for reconsideration, it is evident that the ultimate decision will be one not made by the tribunal, but by the decision-maker himself. But even where the tribunal substitutes its own decision for that of the original decision- maker, the tribunal in so doing is merely acting in an administrative capacity. Its decision is deemed for all purposes to be the decision of the decision-maker: s 43(6) of the AAT Act. To use the language of Rich and Dixon JJ in Jolly v FCT [1935] HCA 21; (1935) 53 CLR 206 at 214 referring to the taxation boards of review, but equally applicable to the tribunal, the tribunal is: "only another executive body in an administrative hierarchy".

The tribunal's function, like that of the taxation boards of review which it, inter alia, replaced, is, to adapt the language of Kitto J in Mobil Oil Australia Pty Ltd v FCT [1963] HCA 41; (1963) 113 CLR 475 at 502, merely to do over again what the decision-maker himself did; not to give a decision which affects the legal situation of the person dissatisfied with the decision but to work out, as a step in administration what the tribunal considers that position to be.

In relation to the taxation boards of review, Kitto J in W J & F Barnes Pty Ltd v FCT [1957] HCA 23; (1957) 96 CLR 294 at 315, said: 'The board's decision was not, of course, an adjudication; it was administrative in character, and could not create an issue- estoppel.'

The full court of this court in Commonwealth v Sciacca (1988) 78 ALR 279; 17 FCR 476 at 480 had no hesitation in saying: 'A finding by an administrative tribunal will not give rise to an issue estoppel.'"[99]

"... the question arises whether the process by which an administrative tribunal, or for that matter, an administrator determining a matter before him, may ever involve an adjudication in the strict sense of the word. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 373, Kitto J expressed the view that no exercise of powers by the Trade Practices Commissioner involved an adjudication (in the proper sense of the word). No doubt, if the exercise by an administrative tribunal did involve an impermissible exercise of Commonwealth judicial power: cf Huddart Parker & Co Pty Ltd v Moorhead [1909] HCA 36; (1909) 8 CLR 330 at 357, per Griffith CJ; R v Davison [1954] HCA 46; (1954) 90 CLR 353 at 368."[100]

53. Hill J also addressed the issues raised in Administration of Papua New Guinea v Daera Guba.[101] He observed that "Gibbs J, with whose reasons Stephen J agreed, expressed the view that the case was one involving cause of action estoppel, not issue estoppel."[102]

54. As for the particular case before him, Hill J said:

"... No doubt if the Administrative Appeals Tribunal makes a determination to a particular effect and the time for appeal expires without an appeal, the parties to its proceedings will be bound by the decision reached, which is a final decision. However, it does not follow in my view that the decision created an issue estoppel."[103]

55. In the circumstances of the case before him, Hill J decided that, even if the Tribunal's decision could create an issue estoppel such that it would bind the Comptroller-General, it would not do so in respect of the import of goods that were not the subject of the Tribunal's review. In any event, the question decided by the Tribunal had been a different question from that which he faced in deciding the ADJR application. The Tribunal had been required to consider the "place of export" of the goods whereas Hill J had to consider whether the goods were "exported" from Korea or Singapore.

56. In Stuart v Sanderson,[104] Madgwick J rejected a submission that Anshun estoppel did not apply to administrative decisions. The submission had been based on issues relating to equitable estoppel or estoppel by representation, to which I am not referring.[105] His Honour rejected that basis as the principles underlying the two doctrines are built upon different foundations. He also rejected any submission that Anshun estoppel should not apply to a right that is derived from statute rather than the common law. Therefore, in considering an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), in light of earlier proceedings for judicial review under s 39B of the Judiciary Act 1901 in relation to the same decisions and arising out of the same circumstances, Madgwick J said:

"Thus, where a party has behaved unreasonably in not raising a matter in the earlier proceedings, that party will in general not be permitted to later litigate it, unless there are special circumstances. ..."[106]

Judgment and findings of fact made by a court in relation to one or both of the parties to a proceeding in the Tribunal

Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558 (1 July 2008)

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Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558 (1 July 2008)

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Cases Cited (53)