Case: Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464
Outcome: applied
As to issue estoppel, the underlying principles were stated by Dixon J (as he then was) in Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 531-532: 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. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second for, the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order. Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J in R v Inhabitants of the Township of Hartington Middle Quarter (1855) 119 ER 288 at 293, the judicial determination concludes, not merely as to the point actually decided, but as to the 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 . (Emphasis added). 14 In Stack v Brisbane City Council [2004] FCA 354 (the Third Set of Reasons) Cooper J said at [21] and [22]: For there to arise an issue estoppel binding against Stack and GST it must be shown that: (a) the issue ruled upon was indispensable or fundamental to the ultimate decision: Blair and Perpetual Trustee Co Ltd v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 531; (b) the judgment is capable of giving rise to an issue estoppel: Administration of the Territory of Papua New Guinea v Guba [1973] HCA 59 ; (1973) 130 CLR 353 at 451; (c) the issues must be the same in each proceeding: Blair v Curran at 510, 532, 541; and (d) the parties to be bound by an issue estoppel were in controversy on the issue in question: Ramsay v Pigram [1968] HCA 34 ; (1968) 118 CLR 271 at 276, 279; Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 356-358; 365. A practical test as to whether an issue was indispensable or fundamental to the ultimate decision is whether an appeal lies from a finding in respect of the issue: Murphy v Abi-Saab (1995) 37 NSWLR 280 at 288. In the instant case, each of the declarations was appealed to the Full Court of this Court and special leave to appeal in respect of them was refused by the High Court of Australia. Further, the fact that the proceedings were in respect of preliminary issues does not deny that they were capable of creating issues estoppel binding the parties to the proceedings: Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642. 52 In my opinion, Cooper J held, and indeed declared, that George Stack was not entitled, pursuant to s 15(1) of the Old Act , to a grant of a standard patent under Application No 85236/91. Since GST's entitlement to PP2 depends on Stack's entitlement to PP2, and since Stack's entitlement to PP2 depends on his entitlement to the standard patent under Application No 85236/91, of which PP2 was a divisional, GST is estopped, in these proceedings, from asserting an entitlement to PP2. In my judgment, the finding that Stack was not entitled to the Patent No 85236/91 is, in the words of Dixon J in Blair v Curran (supra) was " a matter necessary to decide and actually was decided, as the groundwork of the decision " that Stack was not entitled to PP1. 53 It follows that GST is not entitled to PP2 and that therefore an extension of PP2 would be futile. The delegate of the Commissioner was right to refuse the application for an extension of PP2 on this ground. 54 If, contrary to my finding, there was no issue estoppel binding on the applicant, the applicant claimed that having regard to the contents of the Deed of 22 October 1996, and the affidavit of Alan Joseph Grieves filed in these proceedings, there is evidence before the Court on which it might be concluded that Stack comes within s 15(1)(b) or (c) of the Old Act .