Findings of arbitrator admitted in common law proceedings: a consideration of when issue estoppel arises

08 December 2021

In issue

  • Whether issue estoppel arises from the findings of the arbitrator
  • Whether the findings of an arbitrator were admissible in common law proceedings

The background

In December 2018, an arbitrator of the Workers’ Compensation Commission determined the applicant’s workers’ compensation claim against the respondent.

The applicant then brought common law proceedings against the respondent and sought to rely upon the following determinations made by the arbitrator:

  1. That the applicant’s employment was the main contributing factor to her injury.
  2. The former CEO of the respondent had subjected her to bullying and harassment in the course of her employment between May and October 2016.

The respondent argued that the arbitrator’s reasons were not admissible in the common law proceedings for the purpose of establishing those facts. The respondent argued that all the arbitrator decided was that some of the facts on which the applicant relied, entitled her to form a perception that she had been exposed to bullying and harassment during the relevant period. The respondent denied that any actual bullying or harassment had in fact occurred.

In turn, the applicant argued that the arbitrator found that what the former CEO did amounted to actual bullying or harassment during the course of her employment.

The decision at trial

In relation to issue estoppel, the Federal Court noted that ‘a judicial determination directly involving an issue of fact or law disposes of that issue once for all so that it cannot afterwards be raised by the same parties…However, the estoppel covers only those matters which the prior judgment necessarily established as the legal foundation or justification for its conclusion’.

The Court found that the characterisation that the arbitrator arrived at was:

  1. The events that the applicant described had in fact occurred (contrary to the former CEO and the respondent’s case).
  2. The applicant perceived those interactions as amounting to bullying and harassment.
  3. Not only did the applicant perceive the former CEO’s conduct as bullying and harassment but, in fact, it did amount objectively to him bullying and harassing her.
  4. The applicant sustained her psychological injury as an injury arising out of, or in the course of, her employment.
  5. Those events were the whole and predominant cause of her injury.

The Court held that the respondent was estopped in the common law proceeding from denying that the former CEO bullied and harassed the applicant in the respects that the arbitrator found.

The Court ordered that the whole of the arbitrator’s statement of reasons be admitted into evidence.

Implications for you

This case serves as an important reminder that determinations of arbitrators (and other administrative decision-makers) can be admitted into evidence and inform the issues that can be determined in subsequent common law proceedings.

Leggett v Hawkesbury Race Club Limited (No 1) [2021] FCA 1298

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