9.14Section 50 provides:
50 Civil judgment as evidence in civil or criminal proceedings
9.15The effect of this section is that a finding of fact in an earlier civil proceeding is inadmissible in a later proceeding to prove the existence of a fact in issue. The definition of proceeding in s 4 is:
Hugh Williams J did not refer to s 50, but he was probably correct not to do so. Section 50 refers only to a finding of fact in a civil proceeding. Under s 4, a “proceeding” includes only a proceeding conducted by a court, as opposed to a tribunal. The curious effect of this is that it may be arguable that a finding of fact by a tribunal (not governed by s 50) can be given more effect in a subsequent proceeding than a finding by a court. This is likely an example where the common law would be applied under s 12 (rendering a tribunal’s finding of fact inadmissible in a subsequent proceeding).
9.17We agree that it would be an odd result that a finding of fact by a tribunal could be afforded more weight than one made by a court. If there were to be any differentiation, arguably it should be the reverse as a court’s finding is decided on the basis of evidence admitted under the Act. If a fact that was determined by a tribunal is relevant to a criminal or civil proceeding, that fact should be independently proved.
R19 We recommend extending the application of s 50 so that a judgment or finding of fact made by a tribunal is not admissible to prove the existence of a fact that was in issue in the tribunal.