Bell v De Castella & Anor (Appeal)
[2014] ACAT 65
•9 October 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BELL v DE CASTELLA & ANOR (Appeal) [2014] ACAT 65
AA 14/06
XD 13/522
Catchwords: APPEAL – claim for remuneration as employee – previous application determined that there was no evidence of employment – application against the same parties arising from the same circumstances – principle of res judicata – appeal dismissed
VEXATIOUS PARTY - Application that the appellant be prevented from making further application not appropriate as part of final submissions but should be by separate application
COSTS – application for respondents’ costs to be paid by appellant – application denied
Legislation: ACT Civil and Administrative Tribunal Act 2008
ss 32(2), 48, 79, 82
List of texts/
papers: Butterworths Words and Phrases Judicially Defined
Appeal Tribunal: Mr C.G. Chenoweth OAM – Acting Presidential Member
Date of Orders: 9 October 2014
Date of Reasons for Decision: 9 October 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
AA 14/06
XD 13/522
BETWEEN:
WILLIAM JOHN BELL
Appellant
AND:
ROBERT DE CASTELLA
First Respondent
AND:
SMART START FOR KIDS LTD
Second Respondent
APPEAL TRIBUNAL: Mr C.G. Chenoweth OAM – Acting Presidential Member
DATE: 9 October 2014
ORDER
1.The appeal is dismissed with no order for costs.
2.The submission that the appellant be treated as a vexatious litigant should be the subject of a separate application.
………………………………..
Mr C.G. Chenoweth OAM
Acting Presidential Member
REASONS FOR DECISION
Background
This is an appeal from a decision of 17 December 2013 made by Ms W Corby, Senior Member, dismissing the application by the appellant for the recovery of monies which the appellant claimed were owed to him arising out of an alleged employment relationship. Proceedings were instituted by the appellant in two separate applications numbers XD 13/522 and XD 13/960. In the course of the proceedings, the tribunal dismissed application XD 13/960, and ordered that all documents filed in that matter should be included as part of application XD 13/522. Accordingly, the order that was made by the Senior Member is in relation to matter XD 13/522, from which this appeal has been brought.
The first respondent is a well-known marathon runner and supporter of healthy lifestyles. He was instrumental in establishing the second respondent. The purpose of the formation of the second respondent was to encourage indigenous athletes to train and participate in marathon running, both to encourage their own fitness and as an inspiration to other indigenous youth. This is referred to in these reasons as "the project."
The appellant is also known as a physical fitness coach who has had extensive experience with indigenous communities. The first respondent wanted him to assist in the project, which was operated by the second respondent. The first respondent was a director of the second respondent, and his actions were undertaken in that capacity rather than as an individual.
The appellant and the first respondent worked together to encourage and assist the youth who were involved in the project with the aim of going to New York to participate in the New York Marathon in November 2010. While the appellant had his accommodation and expenses paid for this trip, he subsequently did not continue in the role of project coach for the project.
There have been a number of proceedings in this tribunal instituted by the appellant claiming that he was employed by either the first or the second respondent, through the action of the first respondent as its director. There have also been complaints to other bodies arising out of the same circumstances, and a complaint in this tribunal of discrimination.
The first of these proceedings seeking payment of money as an employee appears to be matter number XD11/145 in which the appellant claimed monies arising from his employment by the second respondent as a project coach for the project. These proceedings were based upon the claim that the appellant had been employed by the second respondent for a substantial period of time as part of the project. This matter was heard by Presidential Member Spender. She heard verbal evidence from both the appellant and the first respondent. On 1 January 2012 she determined that there was insufficient evidence to support the appellant's contention that he was in an employment relationship with the second respondent. The tribunal did find that there was an agreement between the appellant and the second respondent relating to reimbursement of expenses.
The appellant had taken his claim for reimbursement of monies owed under an employment contract to Fair Work Australia. On 7 February 2011, Commissioner Deegan of that body issued a certificate pursuant to section 370 of the Fair Work Act stating that the appellant’s application in that jurisdiction would not have reasonable prospects of success.
Further proceedings were instituted in this tribunal by the appellant against both respondents in matters DT 11/27 and DT 12/01. These were unsuccessful.
Matter XD 11/145
In the proceedings before Presidential Member Spender in matter XD11/145 verbal evidence was given by both the appellant and the first respondent. In her reasons for decision set out in the transcript President Spender came to the conclusion that the appellant had failed to prove that there was an employment contract between himself and the second respondent. President Spender noted the lack of any documentation as well as the lack of any agreement or discussion about remuneration, which as she noted is something that goes to the heart of an employment relationship. She concluded that the parties were not in agreement about an employment contract or that the appellant would be paid specific remuneration upon funding becoming available.
The second respondent in those proceedings denied that the appellant had been an employee at any time, although it was admitted that the appellant had participated on a voluntary basis in the project. The claim for remuneration for employment was in respect of the period from 1 April 2009 until 15 November 2010.
The application by the appellant was dismissed. That decision was not the subject of any appeal.
The current proceedings
The proceedings from which this appeal is launched were proceedings to recover moneys which the appellant claimed were owed to him, and arose out of an alleged employment relationship between himself and the second respondent to take part in and advance the project.
The Senior Member determined that in this claim, the question as to the whether there was an employment relationship between the appellant and the second respondent for the period from 1 April 2009 to 15 November 2010 had been determined by the tribunal in matter XD 11/145, and is therefore “res judicata.” (This principle will be discussed later in these reasons.) The appellant had been seeking an order for the payment of remuneration in respect of that period, and asserted that the obligation to pay remuneration was based on an agreement between the parties that the appellant was employed during that period and would be remunerated for the work that he did during the period. Accordingly, the Senior Member dismissed the claim as the central question in the application, that of the employed or volunteer status of the appellant, had already been determined by the tribunal.
The Appeal Grounds
Prior to the institution of the proceedings under appeal, the appellant had lodged freedom of information requests with the Department of Health and Ageing and the Department of Families. The first respondent on behalf of the second respondent had made application to these bodies for funding grants to assist the project. Documents produced under these applications indicated that the first respondent on behalf of the second respondent had applied for funding, which included a provision for the payment of a project coach.
The appellant sought to introduce that information in the proceedings under appeal to demonstrate that there was an employment agreement between himself and the second respondent. This request was rejected by the Senior Member for the reasons set out in her decision. The appellant also wished to introduce the evidence of witnesses who would support his contention that the appellant had been specifically engaged as an employee. This was denied in the course of the hearing below.
The appellant lodged a notice of appeal on 14 January 2014. The grounds of appeal under section 79 (3) of the ACT Civil and Administrative Tribunal Act 2008 ("ACAT Act") require that the appeal is to be on a question of "fact or law". The appeal notice is lengthy, and it is difficult to extract what exactly are the questions of fact or law that the appellant contends should be considered. They are summarised in paragraphs 47 to 50 of the notice of appeal.
The appellant is contending that justice has not been done because of the failure by the Senior Member to allow into evidence the material produced under the freedom of information requests, and also to allow witnesses as to discussions with the appellant to give evidence. Presumably, these discussions went to the question of what the appellant believed he had been told about his status in the project.
A further issue was raised in paragraph 46 that there was the potential for apprehended bias in the conduct of the tribunal's proceedings arising from the failure to hear the appellant’s submission “because the first respondent is a well-known public figure who has had past association with individual members of the tribunal.”
Much of the appeal notice was taken up with reiterating why the appellant considered that he had been employed, and commentary on earlier proceedings in the tribunal. There was no clear identification of the issues of fact or law that could be identified for purposes of the appeal, as required by section 79 (3) of the ACAT Act.
The appeal proceedings
When the matter came before me, I made directions concerning the provision of materials to the appellant and for the filing of submissions in the matter. I determined that the matter was to be decided under section 82 (b) of the ACAT Act, that is as a review of all or part of the original decision, rather than as a new application. I also determined that the appeal would be disposed of on the basis of written material filed by the parties.
Submissions were provided by both parties in accordance with the directions referred to above.
The applicant’s submission
In his lengthy submissions, the applicant contended that there has been unconscionable conduct on the part of the first respondent, resulting in an abuse of process in the tribunal. The failure of the Senior Member to hear evidence which in the appellants view reflected on the evidence given by the first respondent in matter XD 11/145, was a failure of justice that the tribunal should remedy. The appellant set out in detail the material that was produced under the Freedom of Information applications, and also referred to evidence from two named witnesses that the appellant had wanted to call. The appellant set out in detail issues between himself and the respondents as referred to in the proceedings before President Spender, and in other proceedings before Senior Member Lennard. He asserted that the unsatisfactory nature of the earlier proceedings meant that this tribunal should now make a fresh determination about the issue of his employment status. To fail to do this would constitute an injustice that the tribunal should not countenance. He asserted that the defence of res judicata was one that the first respondent was "hiding behind" and that the tribunal should not allow this in the interests of justice.
The respondents’ submissions
In their submissions, the respondents contended that the crucial question in these proceedings was the nature of the relationship between the appellant and the second respondent, and whether that was an employment relationship. These submissions went through in detail the findings in the matter before President Spender, resulting in her determination that there was no employment relationship between the appellant and second respondent at the relevant time.
The respondents asserted that this issue was fundamental to the appellant’s success in this matter, because his claim has been based on an alleged employment relationship. The respondents submitted that the principle of res judicata should be applied in the interests of justice to the respondents. As a result of the prior determination of the relationship between the appellant and the second respondent, it was not open to the tribunal to make an alternative determination.
The respondents also submitted that the tribunal should make a determination under section 32 (2) (c) (ii) of the ACAT Act, that the appellant not make an application to the tribunal in relation to his relationship with the first or second respondent referable to the period from 1 April 2009 to 15 November 2010, without the leave of the tribunal.
The first and second respondents also sought an order for their reasonable legal costs of the appeal proceedings to be paid by the appellant.
The principal of res judicata
Central to the decision of Senior Member Corby and to the hearing of this appeal is the principle of res judicata. It has been defined as follows:
"Res judicata, whether cause of action estoppel or issue estoppel, is based on the fundamental principle that it is unjust for a man to be vexed twice with litigation on the same subject matter. Coupled with the public interest in seeing an end to litigation so far as cause of action estoppel is concerned, the rule is absolute: you cannot sue twice for the same relief based on the same course of action even if new facts or law have subsequently come to light. But it is clear that the rule as to issue estoppel is different: there are circumstances in issue estoppel where the injustice of not allowing the matter to be re-litigated outweighs the hardship to the successful party in the first action in having to re-litigate the point. Arnold v. National Westminster Bank plc [1988] 3 All E.R. 977 at 982, per Browne-Wilkinson VC.
Res judicata is a special form of estoppel. It gives effect to the policy of the law that the parties to a judicial decision should not afterwards be allowed to re-litigate the same question, even though the decision may be wrong. If it is wrong it must be challenged by way of appeal or not at all. As between themselves, the parties are bound by the decision, and may neither re-litigate same cause of action nor reopen any issue which was an essential part of the decision. These two types of res judicata are now nowadays distinguished by calling them "cause of action estoppel" and “issue estoppel" respectively. Crown Estate Commissioners v. Dorset County Council [1991] All E.R. 19 at 23 per Millett J."
(Extract from Butterworths Words and Phrases Legally Defined. Supplement 2005.)
Consideration
The tribunal is satisfied that in this case, the central issue for determination is the same as that determined by President Spender in XD 11/145. That issue is whether there was an employment agreement entered into between the appellant and the second respondent through the agency of the first respondent. Having been decided in the earlier proceedings, it is not open to the appellant to seek to re-litigate that question.
In the matter under appeal, the central issue between the same parties is whether there was an employment agreement which would have all of the necessary incidents of agreement to allow the appellant to recover moneys as an employee. That is the issue which was determined in the previous proceedings, and therefore cannot be re-litigated in these proceedings.
I note that the appellant feels strongly about the matter and has drawn on a speech by the former Chief Justice of New South Wales, Spigelman CJ concerning the importance of justice being seen to be done as well as done. This is a principle that binds this tribunal, but it must be justice according to law. We are past the time when matters could be decided on sentiment, or tribunal’s own view of the subjective morality or potential fairness of the situation. The tribunal, just as much as the parties, is bound by the law and that includes the law of res judicata.
In his submissions, the appellant asked the tribunal to address the issue of public interest which is raised by him in the submissions. The submission noted that the grounds of appeal included an allegation of apprehended bias, resulting in part from the association of members of the tribunal with the first respondent. No evidence was produced which could reasonably substantiate that allegation. An allegation of apprehended bias must be made in clear terms, setting up grounds that to a reasonable person could give a serious apprehension of bias. In relation to the matter under appeal no such grounds have been raised. The fact that parties and tribunal members may have met previously does not of itself give rise to such an apprehension. There was no suggestion that the Senior Member who heard the decision under appeal had any association with the respondents, or that her conduct was in any way capable of giving rise to an apprehension of bias.
The issue of whether the appellant was an employee of the second respondent during the period under consideration was carefully dealt with by President Spender, having heard verbal evidence from the parties. Her decision that there was no such employment relationship was fundamental to the decision that she reached. That is exactly the same issue as presents itself in this case. Accordingly, the tribunal is bound by the principle of res judicata to not allow that issue to be re-litigated in these proceedings. The law on the matter is clear, and the law (and the policy behind it of not exposing a respondent to repeated claims on the same ground that has been found against the applicant in the past) must be upheld.
The decision of the appeal tribunal on the claim for remuneration as an employee is to confirm the decision of Senior Member Corby, and as a result to dismiss this appeal.
The issue of a vexatious litigant
In their submissions of the 25 February 2014, the respondents seek an order that the tribunal give a direction under section 32 (2) (c) (ii) of the ACAT Act that the appellant be treated as a vexatious litigant, and that the tribunal direct that he not make an application to the tribunal in relation to his relationship with the first or second respondent referable to the period from 1 April 2009 to 15 November 2010 without the leave of the tribunal.
This matter has been the subject of a number of proceedings in the tribunal and in other places. Those proceedings have been set out in detail in the decision of Senior Member Lennard in Bell v. De Castella and Robert De Castella's SmartStart for Kids [2013] ACAT 66.
It is understandable that in view of the outcome of this and previous matters referred to in the decision of Senior Member Lennard, the respondents are concerned that the appellant may continue to try to use the processes of the tribunal to recover moneys that he alleges are owed to him as an employee.
Notwithstanding that, the tribunal must be concerned that an application of this nature will deprive the appellant of rights generally available to members of the community. As the note to section 32 makes clear, the tribunal is required to observe natural justice and procedural fairness in its proceedings. This must particularly be so in the case of a stringent provision such as an application under section 32 (2).
While it is open to the respondents to make such an application, it should be by way of separate application and on formal notice to the appellant, so that the issues and the alternatives contemplated by the section can be fully ventilated before the tribunal makes a decision. It would also be appropriate for the matter to be heard by another tribunal member than the one handing down a decision that is adverse to the appellant.
Costs
In their submissions, the respondents seek an order for their reasonable costs of the appeal proceedings to be paid as agreed or assessed.
Section 48 of the ACAT Act provides in subsection (1) that the parties to an application must bear their own costs unless the ACAT Act otherwise provides, or the tribunal otherwise orders. Subsection (2) provides for costs to be awarded in favour of the applicant where the tribunal has decided an application in favour of that applicant. This is not the case here.
It cannot be said that the appellant caused unreasonable delay or obstruction in the proceedings while the tribunal was dealing with the application, as set out in subsection 48 (2) (b). Nor is there an allegation that the appellant has contravened an order of the tribunal as provided in paragraph (c) of the same subsection. In the circumstances, I am not satisfied that there is any basis for an order for the payment of costs under section 48, and decline to order them.
The appeal is dismissed with no order as to costs.
………………………………..
Mr C.G. Chenoweth OAM
Acting Presidential Member
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