Case: Castillon v P&amp;O Ports Ltd [2007] QCA 364 
Outcome: referred to
The second requirement may be satisfied even if the earlier judgment is interlocutory: Castillon v P&amp;O Ports Ltd [2007] QCA 364 at [49] ff. The requirement of finality has been broken down into two separate conditions, namely that the decision must be "final and conclusive" and "on the merits": The Sennar (No 2) [1985] 1 WLR 490 (HL) at 499. 62 This passage from Lord Brandon's speech was referred to with apparent approval in Schnabel v Lui [2002] NSWSC 15 at [112] ; Castillon v P&amp;O Ports Ltd at [54]; and Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58 at [66] . 63 The need for caution in the application of the doctrine of issue estoppel is well established, especially where the estoppel is said to arise from a judgment of a foreign court, and in an interlocutory context: The Sennar (HL) at 500; Castillon v P&amp;O Ports at [55]; Desert Sun Loan Corp v Hill [1996] 2 All ER 847 at 858. 65 The Sennar is also authority for that proposition as was accepted by Holmes JA in Castillon v P&amp;O Ports at [54]. 66 Having approached the present matter with what, I hope, is the requisite degree of caution, I have come to the view that the present case is indistinguishable from The Sennar and that, accordingly, Armacel is barred by an issue estoppel from contending that cl 21.3.1 is an exclusive jurisdiction clause. In coming to this view, I have considered the decisions of the House of Lords, and the Court of Appeal in that case. The Court of Appeal decision is cited as "The Sennar" (No 2) [1984] 2 Lloyd's Rep 142. 67 It seems to me that the reasons for judgment of Kerr LJ and Sir Denys Buckley (Cumming-Bruce LJ concurring) make it clear that it is not possible to avoid the consequence of issue estoppel by simply re-characterising the issue as one which is sought to be litigated in accordance with the law of a different jurisdiction. 68 As Kerr LJ said at 149, it was not open to the plaintiffs to say, simply: What we seek to litigate here are issues under English law, and it does not matter that we litigated precisely the same issues under other systems of law in Holland. 69 The facts of The Sennar are of some importance. The plaintiffs, who were the holders of a bill of lading, invoked the jurisdiction of a Dutch Court by arresting a sister ship of The Sennar in Rotterdam. They brought an action for damages in the Dutch Court which held that their only cause of action lay in contract and that the Dutch court was bound to decline jurisdiction because the contract contained a clause under which the parties submitted to the exclusive jurisdiction of the Court of Sudan. 70 The plaintiffs then began an action in the Admiralty Court of England. However, although they succeeded on the jurisdictional question at first instance, the Court of Appeal held that they were barred from suing in the English Court by reason of an issue estoppel arising from the determination of the Dutch Court as to the construction and effect of the exclusive jurisdiction clause. 71 Kerr LJ observed at 148 that the classification of the plaintiffs' claim, as a matter of private international law, fell to be decided by Sudanese law as the proper law of the bill of lading. He said at 149 that by applying Sudanese law, the Dutch Court of Appeal had adopted the correct approach under the English rules of private international law. 72 However, as I have said, Kerr LJ at 149 also rejected the proposition that it was open to the plaintiffs to seek to re-litigate under English law the same issue that had been litigated under other systems of law in Holland. 73 His Lordship observed at 150 that to accept this proposition would altogether remove the possibility of an issue estoppel arising "from any decision by any Court" on the jurisdiction clause. It would permit uncontrolled forum shopping and run directly counter to the policy behind the doctrine of issue estoppel.