Findley v MSS Security Pty Ltd - [2019] FCCA 2291

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINDLEY v MSS SECURITY PTY LTD & ORS

[2019] FCCA 2291

Catchwords:
INDUSTRIAL LAW –Abuse of process – vexatious proceedings – issue estoppel – anshun estoppel – whether the matters raised in this proceeding could have and should have been raised in previous proceedings – Federal Circuit Court Rules rule.13.10(c) – MSS Security Victorian Enterprise Agreement 2011 – proceeding stayed as an abuse of process.

Legislation:

Fair Work Act 2009 (Cth), ss.90, 117, 323, 325, 536, 540, 550

Federal Circuit Court Act 1999 (Cth), s.88Q
Federal Circuit Court Rules 2001 (Cth), r.13.10(c)

Cases cited:

Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245
Findley v MSS Security Pty Ltd [2017] FCCA 2898

Findley v MSS Security Pty Ltd [2017] FCCA 466

Joshua Findley v MSS Security Pty Ltd T/A MSS Security [2018] FWC 4714
Kermani v Westpac Banking Corporation [2012] VSCA 42
Meade v PW Glass Services Pty Ltd [2016] FCCA 829
Rogers v The Queen (1994) 181 CLR 251

Applicant:

JOSHUA DONALD FINDLEY

First Respondent:

MSS SECURITY PTY LTD

Second Respondent:

MATTHEW LUDDINGTON

Third Respondent:

MARGARET STIMSON

File Number:

MLG 2411 of 2018

Judgment of:

Judge McNab

Hearing dates:

27 March and 30 April 2019

Date of Last Submission:

30 April 2019

Delivered at:

Melbourne

Delivered on:

2 September 2019

REPRESENTATION

The Applicant:

Appearing in person

Counsel for the Respondents:

Mr Champion

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application filed 13 August 2018 be stayed as an abuse of process pursuant to r 13.10(c) of the Federal Circuit Court Rules 2001 (Cth).
In the event that the Respondents wish to make an application for costs, they shall file a submission of no more than 2 A4 pages in length (1.5 spacing) by 4pm 16 September 2019 with any response to be filed by the Applicant by 4pm 23 September 2019, with this application being conducted on the papers.

AND THE COURT NOTES THAT:

The Applicant has given an undertaking that:
1. I will not institute any proceeding in the Federal Circuit Court of Australia against any of the Respondents, or any employees of the First Respondent, in relation to my employment with MSS Security Pty Ltd, save:
a. Any application (subpoena or alike) or appeal in connection with this proceeding – MLG2411/2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Melbourne

MLG 2411 of 2018

Joshua Donald Findley

Applicant

And

Mss Security Pty Ltd

First Respondent

Matthew Luddington

Second Respondent

mARGARET STIMSON

Third Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant filed a claim in this Court on 13 August 2018 alleging, amongst other things, that the First Respondent (‘MSS Security’) contravened the Fair Work Act 2009 (Cth) (‘the Act’) and the MSS Security Victorian Enterprise Agreement 2011 (‘the 2011 Agreement’).
The Applicant further alleges that the Second and Third Respondents, being employees of the First Respondent (collectively, ‘the Respondents’), were ‘involved in’ MSS Security’s contraventions and therefore personally liable pursuant to s 550 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Findley v MSS Security Pty Ltd

Details

AGLC: Findley v MSS Security Pty Ltd [2019] FCCA 2291
Case: [2019] FCCA 2291
Decision Date: 2 September 2019

CaseChat Overview and Summary

Findley (the applicant) brought proceedings against MSS Security Pty Ltd (the respondent) in the Federal Circuit Court of Australia. The applicant alleged that the respondent had breached the MSS Security Victorian Enterprise Agreement 2011. The respondent sought to have the proceedings stayed, arguing that they constituted an abuse of process, specifically invoking the doctrines of issue estoppel and *Anshun* estoppel.

The central legal issue before the Court was whether the matters raised in the applicant's current proceeding could have and should have been raised in previous proceedings between the same parties. This required the Court to consider the principles of issue estoppel and *Anshun* estoppel, and to determine if the applicant's claims were so closely connected to the subject matter of the earlier litigation that it would be vexatious to litigate them again. The Court also considered the application of rule 13.10(c) of the *Federal Circuit Court Rules*.

McNab J found that the applicant's claims were indeed matters that could and should have been raised in the earlier proceedings. The Court reasoned that the applicant had had a full opportunity to litigate all aspects of their employment relationship with the respondent in the previous action. To allow the current proceedings to continue would be to permit a relitigation of issues that were either decided or could have been decided previously, thereby constituting an abuse of process.

Consequently, the Court ordered that the proceedings be stayed as an abuse of process.

Orders