2. In Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 Fisher and Lockhart JJ said at 359
"Issue estoppel, generally but not universally seen as a rule of evidence, cannot have any place in proceedings of the Tribunal and is, to the extent that it is a rule of evidence, expressly excluded by the provisions of s 33 of the Administrative Appeals Tribunal Act 1988 ["the AAT Act"]. Section 33 (1) (b) directing that proceedings should be conducted with little formality and technicality and s 33 (1) (c) to the effect that the Tribunal is not bound by the rules of evidence would appear conclusively to point to exclusion of the doctrine. It is our opinion that the Tribunal is entitled to consider all evidence.
3. In Commonwealth v Sciacca (1988) 17 FCR 476 a Full Court of this Court referred to the above passages from Daniele and held at 480:
"If the view is taken that issue estoppel is a rule of law (which may now be the more acceptable view), that would not conclude the matter, as is apparent from what was said by their Honours, because of the administrative nature of the Tribunal and the provisions of s 33 (1) (b) of the Administrative Appeals Tribunal Act which directs the Tribunal to conduct its proceedings, so far as possible, without formality and technicality. A finding by an administrative tribunal will not give rise to an issue estoppel."
4. In Midland Metals Overseas Ltd v Comptroller General of Customs (1991) 30 FCR 87, Hill J discussed the applicability of the doctrine of issue estoppel to the AAT at 96 - 98:
"... 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... 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[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).
...
The Tribunal's function, like that of the Taxation Boards of Review which it, inter alia, replaced, is ... 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 Commissioner of Taxation (Cth) (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) 17 FCR 476 at 480 had no hesitation in saying: 'A finding by an administrative tribunal will not give rise to an issue estoppel.'
... the question arises whether the process by which an administrative tribunal ... may ever involve an adjudication in the strict sense of that word. ... No doubt, if the exercise by an administrative tribunal did involve an adjudication, a question would arise as to whether that would involve an impermissible exercise of Commonwealth judicial power ...
...
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."
Like the AAT, the RRT is an administrative body. Decisions of the RRT are not adjudications in the strict sense of the word. Decisions of the RRT are merely a "step in administration". The RRT must "review" RRT-reviewable decisions: sub-s 414 (1). It is empowered to exercise all powers and discretions conferred on the original decision maker: sub-s 415 (1). It may affirm or vary the original decision, remit the matter to the original decision maker for reconsideration, or set aside the original decision and substitute a new decision: sub-s 415 (2). If the RRT varies the original decision or sets it aside and substitutes a new decision, "the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister": sub-s 415 (3). The RRT is required to pursue the objective of providing an economical and informal review mechanism: sub-s 420 (1). It is not bound by technicalities, legal forms, or the rules of evidence and must act according to substantial justice and the merits of the case: sub-s 420 (2). Subject to two matters yet to be mentioned, I would treat the RRT as being on all fours with the AAT in the present respect, and would therefore, like O'Loughlin J in Comcare Australia v Murphy, supra, treat the Full Court decisions mentioned as binding me to treat the doctrine of issue estoppel as inapplicable.
(prepared by Kamal Farouque)