Bell v De Castella - [2014] ACAT 3

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BELL v DE CASTELLA & ANOR
(Civil Dispute) [2014] ACAT 3

XD 13/960 and XD 13/522
Catchwords: CIVIL DISPUTE – nature and terms of agreement between the parties for engagement of applicant’s services - previous tribunal decision that there was no employment relationship between applicant and respondent – issue of applicant’s remuneration could have been, but was not, raised in previous proceeding between the parties – res judicata
Legislation:ACT Civil and Administrative Tribunal Act 2008, s.20
Cases:Port of Melbourne Authority v Anshun Pty Ltd (No2) (1981)
147 CLR 589

Tribunal: Ms W. Corby – Senior Member

Date of Orders: 17 December 2013
Date of Reasons for Decision: 24 January 2014

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL
XD13/522 and XD 13/960

BETWEEN:
WILLIAM JOHN BELL
Applicant

AND:
ROBERT DE CASTELLA
Respondent 1

SMART START FOR KIDS LTD
Respondent 2

TRIBUNAL: Ms W. Corby – Senior Member

DATE:17 December 2013
ORDER

The Tribunal Orders that:
1. XD 13/960 dismissed
2. All materials filed in XD 13/960 are to be included in application XD 13/522.
………………………………..
Ms W. Corby – Senior Member

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL
XD13/522 and XD 13/960

BETWEEN:
WILLIAM JOHN BELL
Applicant

AND:
ROBERT DE CASTELLA
Respondent 1

SMART START FOR KIDS LTD
Respondent 2

TRIBUNAL: Ms W. Corby – Senior Member

DATE:17 December 2013
ORDER

The Tribunal Orders that:
1.     XD 13/960 dismissed.
2.     All materials filed in XD 13/960 are to be included in application XD 13/522.
3.     XD 13/522 dismissed.

………………………………..
Ms W. Corby – Senior Member

REASONS FOR DECISION

These reasons for decision are, with some minor amendments, a written record of the oral reasons for decision given at the time that the orders were made in these matters on 17 December 2013. The applicant had filed two applications in the ACT Civil and Administrative Tribunal (the ‘Tribunal’). Those are applications numbered XD13/522 and XD13/960.
Each of these applications seeks recovery of monies which the applicant claims is owed to him and arising out of one alleged employment relationship. At the commencement of the hearing of these applications on 17 December 2013, the applicant agreed that he can bring only one application. Indeed, the applicant had addressed this in his statement dated 29 July 2013 (MFI 1) at paragraphs 14-17.
Both applications relate to the same period, being his engagement as a coach from 1 April 2009 until 15 November 2010. Pursuant to section 20 of the ACT Civil and Administrative Tribunal Act 2008 (‘ACAT Act’), he has limited his claim to $10,000.00.
The Tribunal dismissed application XD13/960 on 17 December 2013. The hearing proceeded in relation to application XD13/522 only. The Tribunal ordered that all documents filed in relation to XD13/960 should now be included as part of application XD13/522.
The respondent asserts that issues primary to the questions to be decided by the Tribunal in XD13/522 are matters which have already been considered and decided by the Tribunal in application XD11/145.
In the reasons for decision given by Tribunal in the matter of Bell v Smartstart for Kids Limited (XD11/145), Presidential Member Professor Spender concluded that there was a relationship between the applicant and the respondent (who is the respondent in the proceedings currently before the Tribunal in XD 13/522) for the period commencing on or about 1 April 2009 and which ceased on or about 15 November 2010.
In relation to the question of whether or not there was an employment relationship during that period giving rise to the requirement for payment of remuneration, the Tribunal concluded:
… The tribunal does not consider that there is sufficient evidence to support Mr Bell's contention that he was in an employment relationship. In this respect, the tribunal notes the lack of any documentation as well as the lack of any agreement or discussion about remuneration. The tribunal concludes that the parties were not ad idem about Mr Bell's contention that he would be paid remuneration upon funding becoming available’
To summarise therefore, the tribunal concludes that an agreement existed between Mr Bell and the respondent that Mr Bell would volunteer his services for the project from time to time and that he would be reimbursed for expenses that he incurred upon the provision of receipts.
It is the Tribunal’s view that the parties in application XD13/522 are the same as the parties to application XD11/145 referred to above.
Although it may be asserted that the claim by the applicant in these proceeding (XD13/522) includes Mr De Castella personally and he was not a party to application XD11/145, it is the Tribunal’s view, having reviewed the documents in the matter currently before the Tribunal (XD13/522 and the paperwork filed in XD13/960 which are now included in XD13/522), that the applicant does not assert that Mr De Castella as an individual, independent of his role as the Director of the Smartstart for Kids Ltd project and in which capacity government funding was sought and provided, had any independent relationship with
Mr Bell which gave rise to the engagement of the applicant as a coach in the period commencing on or about 1 April 2009 and which ended on or about
15 November 2010.
The Tribunal considers that as a result of the matters decided by the Tribunal in XD11/145, and which arose directly from the application before it, the question as to the nature of the relationship between the applicant and the respondent for the period 1 April 2009 to 15 November 2010 has been determined and is therefore res judicata (Port of Melbourne Authority v Anshun Pty Ltd (No 2) (1981) 147 CLR 589).
In application XD13/522, the applicant seeks an order for the payment of remuneration in relation to the period 1 April 2009 and 15 November 2010. The applicant asserts that the obligation of the respondent is based on an agreement between the parties that the applicant was employed during that period and would be remunerated for the work that he did during that period.
The Tribunal in XD11/145 determined that it was not satisfied that:
·an employment relationship existed , or
·an agreement as to payment of remuneration existed.
Further, the Tribunal in XD11/145 concluded that:
·the relationship that did exist was that the applicant provided services as a volunteer, and
·the respondent was not liable for payment of the further expenses claimed by the applicant in that application.
The Tribunal considers that it was open to the applicant in the earlier proceedings to claim for, in addition to the expenses that he sought, any amount by way of remuneration that he considered was payable to him and arose from the agreement that he asserts existed between the parties.
It is that agreement which would give rise to the obligation to pay remuneration. The applicant’s failure to include that aspect of his claim in application XD11/145, and in light of the Tribunal’s determination of the questions referred to above in the decision in XD11/145, now prevents the applicant from again raising these issues in these proceedings.
The operation of res judicata is intended to ensure that at the conclusion of litigation the parties can hope for finality as to the issues between them, arising from essentially the same circumstances.
Even if the entirety of the applicant’s claim has not been adjudicated, the fact that the position proposed by the applicant in XD13/522 relies on a finding that the relationship was never voluntary or unpaid, but rather an employment relationship, cannot be sustained given Professor Spender’s conclusion, after considering the evidence, that she was not satisfied that there was an agreement as to remuneration as asserted by the applicant. She found that there was no employment relationship. That issue cannot now be revisited in this application (XD13/522).
Here, both parties have referred to earlier Tribunal decisions involving these same parties. Both parties have referred to evidence and findings of fact relating to those earlier decisions. The Tribunal considers that this reflects the ‘common features’ of the matters canvassed in those earlier decisions with application XD13/522. Whilst the Tribunal accepts that the issues before the Tribunal in discrimination matters would not, in the same way, address the issues raised in these proceedings, the Tribunal considers that this cannot be said of the decision in XD11/145.
The Tribunal has reviewed and considered the documents filed and referred to by the parties in applications XD13/522 and XD13/960. The Tribunal understands that the applicant asserts that:
a.certain information he relies on in these applications was not available to him at the time of application XD11/145; and
b.that information relates to whether or not, if the agreement was that the applicant would be remunerated subject to funding, that in fact funding was received for payment of his wages.
In relation to the applicant’s assertion set out at paragraph 19(b) above, Professor Spender noted in XD11/145 that the parties did not agree on this aspect of the applicant’s claim. Professor Spender concluded that she was not satisfied that any such agreement was made. That question would be squarely before the Tribunal in these proceedings and, again, has been dealt with in the earlier application XD11/145.
The respondent agrees and the Tribunal accepts that certain of the information relied on by the applicant in relation to the material obtained in response to FOI applications about the government funding provided was not available to the applicant at the time of the hearing of application XD11/145 nor before the decision was given by President Spender on 6 January 2012. However, the Tribunal considers that the applicant’s decision to proceed with application XD11/145 prior to obtaining that information is not a sufficient reason to proceed with application XD13/522 that would otherwise be barred.
The Tribunal is not persuaded by the applicant’s assertion that the Tribunal should take a less strict attitude to the issue of res judicata than would a Court. It is the Tribunal’s view that it must respond to the interests of justice of both parties, and should not prefer the applicant in this matter.
It is primary to any decision that the Tribunal would make in relation to application XD13/522 that the Tribunal make findings as to the nature and terms of the agreement between the parties resulting in the engagement of the applicant in the period 1 April 2009 and 15 Nov 2010.
Given that these issues, fundamental to the claim by the applicant in XD13/522, were decided in the matter of XD11/145, they are res judicata. Based on the findings by Professor Spender the applicant cannot succeed. Application XD13/522 is, therefore, dismissed.

………………………………..
Ms W. Corby – Senior Member

PUBLICATION DETAILS

FILE NUMBER:	XD 13/960 & XD 13/522
PARTIES, APPLICANT:	William J. Bell
PARTIES, RESPONDENT 1: PARTIES, RESPONDENT 2:	Robert De Castella Smart Start for Kids Ltd
TRIBUNAL MEMBERS:	Ms W. Corby – Senior Member
DATES OF HEARING:	22/10/2013 and 17/12/2013
PLACE OF HEARING:	ACAT Canberra