FEDERAL CIRCUIT COURT OF AUSTRALIA
| MEADE v PW GLASS SERVICES PTY LTD & ANOR | [2016] FCCA 829 |
| Catchwords: INDUSTRIAL RELATIONS – interlocutory application for claim to be dismissed on the grounds of Anshun estoppel – whether the facts of the present proceeding (concerning overtime and meal allowance throughout six years of employment) are so closely related to the earlier proceeding (concerning redundancy entitlements upon termination of employment) that the applicant should have brought the present claims in the earlier proceeding – whether the applicant’s financial circumstances justified not bringing the present claims in the earlier proceedings. |
| Legislation: Fair Work Act 2009 (Cth) |
| Applicant: | DEAN MEADE |
| First Respondent: | PW GLASS SERVICES PTY LTD (ABN 93 073 336 320) |
| Second Respondent: | PETER WALKER |
| File number: | MLG 2469 of 2015 |
| Judgment of: | Judge Riley |
| Hearing date: | 23 March 2016 |
| Date of last submission: | 23 March 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 14 April 2016 |
REPRESENTATION
| Counsel for the applicant: | Mark Rinaldi |
| Solicitors for the applicant: | Kliger Partners |
| Counsel for the first respondent: | No appearance |
| Solicitors for the first respondent: | King & Wood Mallesons |
| Counsel for the second respondent: | Nicholas Harrington |
| Solicitors for the second respondent: | Mills Oakley Lawyers |
ORDERS
The application in a case filed on 8 March 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2469 of 2015
| DEAN MEADE |
Applicant
And
| PW GLASS SERVICES PTY LTD (ABN 93 073 336 320) |
First respondent
And
| PETER WALKER |
Second respondent
REASONS FOR JUDGMENT
Introduction
The substantive application in this matter concerns various alleged breaches of the Fair Work Act 2009 (“the Act”). The applicant was an employee of the first respondent. The proceeding against the first respondent has been stayed because it is in liquidation. The second respondent was the sole director, secretary and shareholder of the first respondent. He is said to have accessorial liability for the alleged contraventions by the first respondent.
The matter that is presently before the court is an application in case filed by the second respondent on 8 March 2016. In that application, the second respondent sought orders:
a)transferring the matter to the Federal Court;
b)in the alternative, permanently staying the claim of accessorial liability against the second respondent;
c)in the alternative, dismissing the claim of accessorial liability against the second respondent; and
d)in the alternative, dismissing the applicant’s claims for tool and meal allowances.
The application to transfer the matter to the Federal…
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Details
- Case
- [2016] FCCA 829
- Decision Date
CaseChat Overview and Summary
This decision of Judge Riley concerned the application of the Anshun estoppel principle. The dispute arose from a claim that had not been litigated in earlier proceedings, which had been compromised.
The court was required to determine whether the principle of Anshun estoppel applied to a claim that could have been, but was not, raised in earlier proceedings that were settled without adjudication. The legal issue was whether the compromise of the earlier proceeding precluded the subsequent litigation of the claim.
Judge Riley reasoned that the Senior Member was incorrect in holding that Anshun estoppel had no application simply because the earlier proceeding was compromised. The court applied the principle that Anshun estoppel can arise even where prior proceedings were settled without a formal adjudication, citing authorities that establish this position. The underlying public interest in finality of litigation and preventing parties from being vexed twice in the same matter supports the application of the estoppel in such circumstances. The court noted that a later action may amount to an abuse of process if the claim should have been raised in the earlier compromised proceedings.
The court found that the Senior Member was wrong in law to hold that Anshun estoppel had no application. The decision indicates that the principle of Anshun estoppel may apply where earlier proceedings were settled without adjudication, and that a later action may be an abuse of process if the claim ought to have been made in those compromised proceedings.
The court was required to determine whether the principle of Anshun estoppel applied to a claim that could have been, but was not, raised in earlier proceedings that were settled without adjudication. The legal issue was whether the compromise of the earlier proceeding precluded the subsequent litigation of the claim.
Judge Riley reasoned that the Senior Member was incorrect in holding that Anshun estoppel had no application simply because the earlier proceeding was compromised. The court applied the principle that Anshun estoppel can arise even where prior proceedings were settled without a formal adjudication, citing authorities that establish this position. The underlying public interest in finality of litigation and preventing parties from being vexed twice in the same matter supports the application of the estoppel in such circumstances. The court noted that a later action may amount to an abuse of process if the claim should have been raised in the earlier compromised proceedings.
The court found that the Senior Member was wrong in law to hold that Anshun estoppel had no application. The decision indicates that the principle of Anshun estoppel may apply where earlier proceedings were settled without adjudication, and that a later action may be an abuse of process if the claim ought to have been made in those compromised proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The second respondent referred to Whelan Kartaway Pty Ltd v Donnelly & Anor [2012] VSC 45 (“Whelan Kartaway”), where Davies J, then of the Supreme Court of Victoria, reviewed the authorities and said the following at [21]-[24]: [21] Anshun estoppel will arise in circumstances where a party to a subsequent proceeding seeks to litigate a claim or defence “which could and should have been litigated in the earlier proceedings”.[24] The estoppel is an “analogical extension” of the doctrines of res judicata and issue estoppel[25] and operates to preclude a litigant from bringing a particular claim where it was “unreasonable” for the litigant not to have brought that claim, or rely on that claim as a defence, in an earlier concluded proceeding.[26] If the litigant was unable to raise the claim or defence in the earlier proceeding, no Anshun estoppel will arise.[27] Equally, the fact that the litigant could have raised the claim or defence in the earlier proceeding does not mean that the estoppel will arise. The test is “based on the reasonableness … of the conduct of a litigant in earlier proceedings”.[28] The mere fact that the matter could have been raised does not mean that it should have been raised for the operation of the estoppel.[29] The “unreasonableness” criterion involves an evaluative element based upon what a litigant could reasonably have been expected to do in the earlier proceeding. In Port of Melbourne Authority v Anshun Pty Ltd, Gibbs CJ, Mason J and Aickin J stated:there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.[30] Although the estoppel was expressed in reference to the failure to raise a defence, the principle equally applies with respect to a claim. The question is whether the claim was “so relevant” to the earlier litigation that it was “unreasonable” not to have raised it.[31] [22] Whether a claim was “so relevant” to the earlier litigation that it was “unreasonable” not to have raised it requires consideration of all the circumstances bearing upon unreasonableness in the particular matter, not simply identifying common facts in, or subject matter of, both proceedings.[32] In Port of Melbourne Authority v Anshun Pty Ltd, Gibbs CJ, Mason J and Aickin J explained that:there are a variety of circumstances … why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.[33] [24] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598.[25] Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 (Unreported, French J, 20 December 2004) [59]; Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33 (Unreported, Allsop P, Giles JA, Handley AJA, 16 March 2010) [39].[26] Port of Melbourne Authority v Anshun Pty Ltd[1981] HCA 45; (1981) 147 CLR 589, 602.[27] Spassked Pty Ltd v Commissioner of Taxation[2007] FCAFC 205 (Spender, Dowsett and Edmonds JJ, 21 December 2007) [78].[28] Meriton Apartments Pty Ltd v Industrial Court of New South Wales[2009] NSWCA 434, [60] cited with approval in Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33, [39].[29] Champerslife Pty Ltd v Manojlovski[2010] NSWCA 33, [4]; Aon Risk Services Pty Ltd v Australia National University [2009] HCA 27; (2009) 239 CLR 175, 193-5 (French CJ).[30] Port of Melbourne Authority v Anshun Pty Ltd[1981] HCA 45; (1981) 147 CLR 589, 602.[31] Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33, [4].[32] Champerslife Pty Ltd v Manojlovski[2010] NSWCA 33, [52].[33] Port of Melbourne Authority v Anshun Pty Ltd[1981] HCA 45; (1981) 147 CLR 589, 603.Circumstances bearing on “unreasonableness” include, but are not confined to[34], the potential for the judgment in the later proceeding to “conflict”[35] with the judgment in the earlier proceeding.[23] The authorities establish that a finding of Anshun estoppel should not be made lightly and a consideration of all the relevant facts bearing on the question of “unreasonableness” is required. This may include the character of the previous proceeding, the scope of any pleadings, the length and complexity of any trial, any real or reasonably perceived difficulties in raising the relevant claim earlier, and any other explanation for the failure to raise the claim previously.[36] [34] Gibbs v Kinna[1998] VSCA 52; [1999] 2 VR 19, [28] (Kenny JA).[35] Port of Melbourne Authority v Anshun Pty Ltd[1981] HCA 45; (1981) 147 CLR 589, 603.[36] Gibbs v Kinna[1998] VSCA 52; [1999] 2 VR 19 [28] (Kenny JA).Decision[24] In my view, the Senior Member was wrong in law to hold that the principle of Anshun estoppel had no application because the earlier proceeding was compromised. There are a number of cases in which it has been held that Anshun estoppel may apply where the earlier proceeding was settled without adjudication.[37] In Johnson v Gore Wood & Co (a firm)[38] Lord Bingham explained that:An important purpose of the rule is to protect a defendant against the harassment necessarily involved in repeated actions concerning the same subject matter. A second action is not the less harassing because the defendant has been driven or thought it prudent to settle the first; often, indeed, that outcome would make a second action the more harassing.[39] The underlying public interest is the same: that there should be finality in litigation and a party should not be vexed twice in the same matter.[40] A later action may amount to an abuse of process if the claim should have been raised in the earlier compromised proceedings, if it was to be raised.[41] But as Corboy J observed in Rojanasaroj v Rachan (No 2),[42] the possibility that a party can be prevented from pursuing a claim in an action because the claim ought to have been made in an earlier proceeding that was compromised adds to the complexity of findings that must be made in determining what was truly disposed of by the settlement.[37] Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1; Rojanasaroj v Rachan (No 2) [2011] WASC 271 [39] (Corboy J); R&J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232 (Bryson AJ); Seidler v The University of New South Wales[2011] FCA 640 (Cowdroy J); Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty Ltd[2008] VSC 405; (2008) 21 VR 43 (Beach J); Running Pigmy Productions Pty Ltd v AMP General Insurance Co Ltd and Ors[2001] NSWSC 431 [36] (Palmer J).[38] [2002] 2 AC 1.[39] [2002] AC 1, 32-33.[40] [2002] 2 AC 1, 31.[41] Lord Bingham of Cornhill, cited with approval in Aon Risk Services Australia Ltd v Australian National University[2009] HCA 27; (2009) 239 CLR 175, 194 [34] (French CJ).[42] [2011] WASC 271 [39].
Ratio Decidendi
Legal Principle Established
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