PRADOS v Chief Commissioner of Police for the State of Victoria
[2018] FCCA 3274
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRADOS v CHIEF COMMISSIONER OF POLICE FOR THE STATE OF VICTORIA | [2018] FCCA 3274 |
| Catchwords: INDUSTRIAL LAW – Justiciable matter – whether a civil matter arising under Fair Work Act 2009 in circumstances where arbitral panel had decided applicant’s claim for COT Allowance – whether decision of arbitral panel extinguished pre-existing cause of action for COT Allowance – whether pre-existing claim replaced by entitlement to bring claim for enforcement of implied promise to perform and observe obligations created by arbitral decision – jurisdiction of court not engaged – no justiciable matter – application to be set aside. ABUSE OF PROCESS – Where substantially identical claim determined by arbitral process to which applicant had assented – applicable principles differ from those to be applied in claim of issue estoppel – broad evaluative approach to be adopted – present objection of abuse of process not grounded upon delay or that claim could and should have been made in arbitration – objection grounded upon the determination of arbitral panel operating to extinguish present claim – abuse of process would have been made out had it been necessary to do so. ACCRUED JURISDICTION – Whether non-federal claim brought within the accrued jurisdiction of the court – no accrued jurisdiction available where no federal jurisdiction has been engaged – proceeding set aside. LIMITATION OF ACTIONS – Generally undesirable that limitation issues be decided on an interlocutory application – unnecessary to decide. |
| Legislation: Fair Work Act 2009 (Cth), ss.3, 14, 43, 50, 51, 52, 53, 54, 186, 335, 539, 544, 566, 567, 576, 577, 595, 739 |
| Cases cited: Aldi Foods Pty Ltd v Shop Distributive and Allied Employees Association (2017) 350 ALR 381 |
| Other materials cited: Jones, Commercial Arbitration in Australia, 2nd Ed, (2013) |
| Applicant: | LEIGH PRADOS |
| Respondent: | CHIEF COMMISSIONER OF POLICE FOR THE STATE OF VICTORIA |
| File Number: | MLG 2495 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 30 October 2018 |
| Date of Last Submission: | 30 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Millar |
| Solicitors for the Applicant: | McDonald Murholme Solicitors |
| Counsel for the Respondent: | Mr Follett |
| Solicitors for the Respondent: | Clayton Utz |
THE COURT ORDERS THAT
The proceeding be set aside.
By 4.00pm on 22 November 2018, the parties file and serve submissions, not exceeding 4 pages, in relation to any question of costs.
The proceeding is listed for mention at 10.00am on 27 November 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2495 of 2017
| LEIGH PRADOS |
Applicant
And
| CHIEF COMMISSIONER OF POLICE FOR THE STATE OF VICTORIA |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain my decision upon the respondent’s application which is primarily for an order to set aside the proceeding.
The application arises in circumstances where the applicant, who had been an active participant in a private consensual arbitral process, now seeks to press substantially the same claim in this court. In that arbitration, the applicant, with other members of the Victorian Police, sought the determination of claims for payment of a Commuted Overtime Allowance (COT Allowance). Following lengthy industrial negotiations, a panel designated as the Commuted Overtime Allowance Panel was established. On 27 June 2017, the Panel made a determination which partially vindicated their claims. The applicant, who has not sought to set aside the Panel’s determination, is dissatisfied with the partial vindication of his claim. The claim in this court differs only inasmuch as the applicant now alleges that non-payment of the COT Allowance also contravenes s 50 of the Fair Work Act 2009 (Cth) (Act). In both the arbitral proceeding and in this court, the foundation of each claim was and is grounded upon certain enterprise agreements.
Relevantly, the Panel determined that persons, including the applicant, who had performed work while assigned to a section of the police force designated as Task Force Razon (Task Force) were entitled to a COT Allowance with effect from 1 July 2012. The applicant now claims an entitlement to an allowance for the period July 2010 – December 2012. This is the same claim which was made before the Panel. The claim in this court differs only by reason of the claim now being made under s 50 of the Act[1] for statutory compensation and penalties.
[1] Unless stated to the contrary, a reference to legislation is a reference to the Act.
This proceeding was commenced in circumstances where the procedure expressly agreed in relation to the conduct of the arbitral process was that the Panel’s decision was both final and binding and that no appeal would flow from its decision. The applicant has not sought that the Panel’s decision be set aside for error on the face of the record.
The respondent objects, in substance, that by reason of the Panel’s decision there is no justiciable controversy between the parties and for that reason there is no matter arising under the Act. Thus it is said that the jurisdiction conferred by the Act on this court is not engaged. I agree.
I have concluded that the respondent is entitled to the relief sought and that it is appropriate to exercise the power to set aside the proceeding.
Had it been necessary to do so, I would also have stayed the proceeding as an abuse of process. I would have done so in circumstances where I recognise that this power should be exercised sparingly. The facts being agreed, I would have concluded that there was no reason to defer the final determination of the abuse of process issue until trial.
Applying settled principle, I would not have acceded to the application to set aside so much of the proceeding as was said to be statute barred.
As the jurisdiction of the court was not engaged, there is no federal claim to which a non-federal claim may be brought in the accrued jurisdiction of the court. The present is not a case in which questions arise as to the exercise of discretion to allow a non-federal claim to remain in the court.
Procedural history
On 20 November 2017, the applicant brought a proceeding in this court, naming the Police Department (Vic), trading as Victoria Police, as respondent, thereby seeking to invoke the court’s jurisdiction under the Act. The application stated that the orders sought and the grounds upon which relief was claimed were as set out in a statement of claim filed with the application.
On 20 December 2017, the applicant filed an amended application and amended statement of claim. The only change effected to the proceeding by the filing of those documents involved the substitution of Chief Commissioner of Police for the State of Victoria as respondent.
By his amended statement of claim the applicant made a claim for the recovery of compensation quantified in the sum of $20,694.54. This claim was expressly grounded upon the operation and alleged breach of two enterprise agreements, the Victoria Police Workplace Agreement 2007 (2007 Enterprise Agreement) and the Victoria Police Force Enterprise Agreement 2011 (2011 Enterprise Agreement) which, it was further alleged, constituted “a breach of section 50 of the [Act].”
The respondent has not filed a notice of address for service. It is to be assumed that it did not do so in order to avoid the result that it may be said to have submitted to a jurisdiction which it put in contest.[2]
[2]Cf Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245, [2] (Bromberg J), in which an unconditional appearance had been filed (but which had no bearing on the ultimate result).
On 22 December 2017, the parties agreed in orders regulating the hearing and determination of an application to strike out the proceeding. The parties further agreed in the filing of affidavits that would adduce the evidence upon which they relied. They agreed that the application should be set down upon an estimated hearing time of two days.
A regrettable result of the parties having agreed in those orders was that the first available hearing date for a two day matter was 30 October 2018. Had the parties turned their mind to the scope of this issue more precisely, a directions hearing would have taken place and it is certain that a half day hearing date could have been allocated to the matter well before the first date available for the hearing of a two day matter.
By application in a case filed on 23 February 2018, the respondent sought orders that: (1) the amended application be set aside: (2) alternatively, that there be summary judgement for the respondent, or; (3) that so much of the amended claim as was statute barred be dismissed.
The application in a case was supported by several affidavits together with voluminous exhibits, all of which were relied upon as proving facts which were said to be uncontentious. The applicant also filed an affidavit which addressed certain additional matters.
The parties made clear that no deponent was to be cross-examined.
I have considered all of the facts and circumstances disclosed by those affidavits. It is of significance to the determination of this proceeding to recognise that save as to one matter, the parties are in agreement as to the underlying facts giving rise to this proceeding. The matter upon which there was disagreement is addressed below but relates, in substance, to the applicant’s asserted belief as to the scope of the clause by which it was agreed that the Panel’s decision was final and binding.
Background
The applicant, who has been a member of the Victorian police force since 2006, was employed by the respondent, which is an employer and national system employer as defined by ss 335 and 14 of the Act respectively.
The applicant commenced work with the Task Force as an operative on 5 July 2010. His position with the Task Force was gazetted. The applicant performed his work with the Task Force from 5 July 2010 to 16 December 2012. The applicant left the Task Force by reason that he was successful in an application to be appointed to the role of Detective, Crime Command.
The Task Force was established to address alcohol-fuelled assaults in Victoria and operated as a covert liquor licensing unit. The approved operational capacity of the Task Force comprised 21 members together with intelligence analysts and unsworn members.
As pleaded, any entitlement to the COT Allowance stemmed from two enterprise agreements described as the Victoria Police Workplace Agreement 2007 and the Victoria Police Force Enterprise Agreement 2011, the latter of which commenced operation on 29 November 2011.
Clause 6.9.1 of the 2007 Enterprise Agreement relevantly provided:
An Employee not above the rank of Senior Sergeant employed as a Detective or performing similar duties or determined by the Employer as having a similar pattern of work as Detectives, must be paid a commuted overtime allowance in lieu of any payment for overtime worked, or any recall to work . . .
The 2011 Enterprise Agreement contained dispute resolution procedures which mirror those of the 2007 Enterprise Agreement.
Subsequently, the respondent, together with the Police Federation of Australia, sought and obtained the approval of an agreement designated the 2015 Enterprise Agreement (2015 Enterprise Agreement).
Clause 46.1 of the 2015 Enterprise Agreement effectively mirrors cl 6.9.1 of the earlier agreements. It reads:
46. Commuted Overtime Allowance
46.1 An employee not above the rank of Senior Sergeant employed as a Detective or performing similar duties or determined by the employer as having a similar pattern of work as Detectives, must be paid a commuted overtime allowance in lieu of any payment for overtime worked, or any recall to work in accordance with Schedule B.
Schedule B dealt with the subject, Salary Related Allowances, principal amongst which was the COT Allowance.
The Enterprise Agreements were negotiated by the respondent with the applicant’s representative organisation, the Police Association of Victoria (TPAV), a bargaining representative under the Act and a branch of the Police Federation of Australia. Those parties sought and obtained statutory approval to the terms of those agreements.
TPAV is an industrial organisation of employees which represents the industrial interests of Victoria Police officers, including ~98% of sworn Victorian Police officers.
By a decision of the FairWork Commission made on 21 March 2016, approval was given to the 2015 Enterprise Agreement. The decision recorded that the agreement was a single enterprise agreement.
The decision further recorded that the approval was given in accordance with s 54 of the Act, would operate from 28 March 2016 and would be assigned a nominal expiry date of 30 November 2019.
The applicant deposed that his employment became subject to the 2015 Enterprise Agreement with effect from 28 March 2016.
The industrial dispute
The parties’ dispute has had a protracted history. As will appear, that history has included the making of claims, extensive negotiations, the making of an application to the FairWork Commission, conciliation, the promulgation of guidelines upon which to determine the eligibility of claimants for a COT Allowance, the making of a Recommendation by the FairWork Commission, agreement on procedures that were adopted for the conduct of an arbitration, including that the determination of that process was to be final, binding and not subject to further appeal, the preparation of submissions and evidence for the arbitral panel and the making of a decision upon the claims for a COT Allowance.
In the period August 2013 – October 2014, a number of members of Victoria Police had lodged claims for the payment of the COT allowance. A total of 115 claims were made. The claims were made by a variety of officers, including some 40 officers then assigned to the Task Force.
Anticipating the prospect that further claims for payment of a COT Allowance could be made, personnel from the respondent’s Human Resources department together with TPAV, held monthly meetings to discuss the matter and took steps to promulgate guidelines which might be used to assist in the determination of whether the responsibilities of particular Police officers were eligible for that allowance (guidelines).
Despite negotiations held with TPAV over the period November 2013 – March 2014, including the exchange of a series of draft proposed guidelines, the respondent’s executive management was unable to endorse those guidelines in their proposed form. The impasse in relation to these guidelines served as a catalyst for the escalation of a dispute.
As appears below, each Enterprise Agreement contained an agreed procedure for the resolution of disputes, including by arbitration. As also appears, where the determination of the dispute by the FairWork Commission proceeded by way of arbitration, it was agreed to be binding.
On 21 May 2014, TPAV filed an application before the FairWork Commission to deal with the dispute. The application was entitled:
Application to the Commission to Deal with a Dispute In Accordance with a Dispute Settlement Procedure (emphasis added)
Self-evidently, the 2011 Enterprise Agreement was operative at the time that this application was lodged.
By that application, the FairWork Commission was requested to deal with and seek to resolve[3] the subject dispute, including that certain personnel[4] be paid a COT Allowance. By way of attachment to the application, TPAV provided the FairWork Commission with copies of: (1) the Dispute Resolution provisions embodied in the 2011 Enterprise Agreement; (2) cl 44.1 of that agreement, which governed the COT Allowance; (3) the current draft of the proposed guidelines.
[3] See s 739.
[4]The immediate subject of the application were members of another section of the Police force, however, this was not an issue raised or relied upon by the parties.
Consistently with the agreed dispute resolution process contained in the 2011 Enterprise Agreement, the FairWork Commission facilitated a number of conciliation conferences. One result of such conciliation process was that the guidelines were the subject of further revision, with ongoing attempts being made to reach agreement as to their content.
TPAV issued a bulletin to its members at regular intervals. It did so throughout the period of the escalation and resolution of the dispute. TPAV employed its bulletins to provide its members with advice in relation to the progress of negotiation upon the guidelines. It provided members with the then current set of proposed guidelines. It was not suggested that the applicant did not receive those bulletins.
The guidelines were of particular significance in that they would become the repository of alternative criteria respecting the eligibility for determining an officer’s entitlement to the COT Allowance.
Following conciliation by the FairWork Commission, the parties ultimately agreed upon a series of final changes to the proposed guidelines, such that:
a)on 15 December 2014, the respondent wrote to TPAV stating that:
As a result of both the Conference on 7 November 2014 and subsequent discussions on 11 December 2014, the Parties agreed to the attached amended qualifying criteria that will determine eligibility of each claimant.
b)by that letter, the respondent indicated it would support the matter being mentioned at the FairWork Commission on 18 December 2014 and seek a Recommendation from that Commission;
c)the criteria upon which claimants might establish their eligibility for a COT Allowance were those as agreed in the guidelines;
d)on 23 December 2014, the respondent and TPAV sought and obtained that Recommendation from the FairWork Commission;
e)the Recommendation set out, relevantly, three alternative criteria which were to govern a claimants eligibility for a COT Allowance;
f)the Recommendation included that finalisation of the matter should include the parties/claimants signing terms of settlement which terms should be executed before any payment was made.
As a result, with effect from 23 December 2014, the FairWork Commission had conciliated and resolved the parties’ dispute.
On 23 December 2014, TPAV issued a bulletin to its members entitled Big Win for members on Commuted Overtime Allowance. The bulletin contained advice as to the making of the Recommendation and informed members that payments to certain officers would be backdated to 12 September 2012 and in other cases to 1 January 2009. The bulletin attached the Recommendation. The bulletin also stated:
If members believe they have an entitlement to the allowance and have not yet submitted a claim for payment, they should submit a claim to their line manager for assessment.
TPAV assumed responsibility on behalf of its members for submitting applications for the COT Allowance. Those applications were prepared upon the eligibility criteria set out in the Recommendation (being those agreed in the final version of the guidelines).
The COT Allowance Panel
Following the making of the Recommendation, the respondent and TPAV undertook further negotiations and ultimately agreed a procedure for the resolution of claims for the COT Allowance.
The procedure agreed by those parties entailed the establishment of an arbitral panel (Panel), whose fundamental purpose was to hear and determine such claims for the COT Allowance as had not been accepted. The composition of the Panel was of three persons, being a nominee of the respondent, TPAV and an independent chair.
The Panel heard and determined claims, including those made by Police officers who were members of the Task Force. Before the Panel, a representative of TPAV appeared on behalf of the Task Force claimants.
In the course of pressing the submissions on behalf of those claimants, TPAV’s representative prepared two reports, each of which: (a) included a submission that TPAV was authorised to make the application on behalf of named applicants; (b) expressly named the applicant as one of the Task Force officers who had authorised the application.
Claim for COT Allowance
On 12 February 2015, the applicant submitted a COT Allowance claim. His claim was submitted to the Station Commander of the Task Force. On 17 February 2012, the applicant also sent his claim to Senior Sergeant Sheppard (Sheppard), who had been the applicant’s line manager during the period of his employ at the Task Force. Sheppard dealt with the applicant’s claim thereafter and did so representing all Task Force claimants in preparing submissions to, and making submissions before, the Panel. Sheppard responded that the claim should be handled by his chain of command who would forward the claim to Workplace Relations. The applicant’s claim comprised a two page letter describing his responsibilities and attached a copy of a Gazette notice relating to his appointment to the Task Force.
On 29 October 2015, the respondent sent an email to the applicant refusing his claim. It advised him that the refusal of the claim had been made on the assessment of one officer and the endorsement, on review, of another. The email stated that the assessment had been made against the eligibility criteria as agreed by TPAV and the respondent and endorsed by the Recommendation of the FairWork Commission. The email further stated that “Specifically, it has been determined that Taskforce Razon is not an investigative unit that was established to investigate crime.”
From 17 November 2015, Sheppard pursued the acceptance of their claims, including the claim that had been made by the applicant. On that date, the applicant received an email from a delegate of Sheppard advising as to the progress of COT Allowance claims and encouraging claimants to begin collating information that might be of assistance in the prosecution of those claims with the respondent. The applicant was one of the personnel to whom this request was made.
Claims for a COT Allowance were made by some 40 Task Force personnel. On 10 March 2016, Sheppard sought and obtained the assistance of TPAV to pursue the COT Allowance claims on behalf of Task Force claimants. Sheppard notified the claimants that if their claims were not accepted by the respondent, TPAV would pursue them before the FairWork Commission. The claimants, including the applicant, were provided detailed advice as to the type of evidence which they should try to collate so as to support their claims.
On 21 March 2016, TPAV sought a review of the respondent’s decision to reject the claims, making a detailed submission in support of the request for review. In addition, on 24 March 2016, an email was sent to each of the claimants, including the applicant, appraising them of the progress of their claims, the request for review and advice that if the matter was not resolved it would proceed to the FairWork Commission.
On 6 May 2016, the respondent sent an email to each of the claimants for a COT Allowance, including the applicant, providing a summary of the history of the processing of claims to that point and inviting them to provide any further information in support of their applications. The applicant deposed that he had received this email.
The respondent set 4 July 2016 as the date for submission of any further information.
On 9 May 2016, Sheppard sent an email to each of the claimants, including the applicant, noting that he had been assigned responsibility to co-ordinate their claims and advised that since many of the claimants had now left the Task Force, he would facilitate the obtaining of information which they required from their time as members of that Task Force in support of their claim. To that end, Sheppard appointed a Sergeant to assist those claimants in obtaining that information.
On 16 June 2016, Sheppard sent an email to each of the claimants, including the applicant, advising of his dealings with TPAV and noting that TPAV’s position was that it would be preferable if the claimants lodged a single response in support of their claims. Sheppard further advised that, to this end, he was in the process of preparing a report which he anticipated completing in another week and that it would be provided to the claimants for their consideration. The applicant deposed that he had received this email.
The email sent by Sheppard on 16 June 2016 expressly advised claimants that they were free to submit their own report.
On 29 June 2016, the applicant sent an email to Sheppard advising that he would not submit his own report but instead supplied information concerning the responsibilities which he had undertaken during his time as a member of the Task Force. The applicant’s email characterised the information that he supplied as that which “may advance our claim”.
On 4 July 2016, Sheppard sent an email to each of the claimants for a COT Allowance, including the applicant, providing a copy of his report and advising that his report had been considered and endorsed by TPAV. Sheppard reiterated that if a claimant did not agree with the report they were free to choose to “go it alone.” Sheppard did not receive any communication from the applicant that he did not agree in the report. The attached report made highly detailed submissions in support of the claim, incorporated the information which had been supplied by members and expressly stated that:
I respectfully submit that all of the information for the individual applicants will be substantially the same. Therefore I have been authorised by each named member below to submit a report on their behalf. (emphasis added)
The applicant’s name was included amongst the 44 personnel who had authorised the submission of the report.
Sheppard’s report was submitted to the respondent. The report contained information relating to two Operations in support of the claims, being information that the applicant had supplied for the report.
On 9 August and again on 11 August 2016, representatives of TPAV and the respondent undertook negotiations respecting the resolution of the claims for a COT Allowance by members of the Task Force. Those negotiations included the levels of proof that would likely be required to meet the eligibility criteria for a COT Allowance. As a result of those negotiations, TPAV and the respondent’s representatives agreed that a claimant should be required to provide six examples of the types of work which were said to demonstrate that the eligibility criteria were met.
On 29 August 2016, the respondent advised TPAV that it had rejected the claims by members of the Task Force for a COT Allowance. On 12 September 2016, Sheppard sought advice from the respondent as to the progress of the matter and was advised by the respondent of the above. Sheppard informed the claimants of this outcome.
On 3 October 2016, TPAV and the respondent undertook further negotiations in relation to an appeal mechanism to address determination of the COT Allowance claims. Factors considered at this meeting included that because there were a large number of claims, it would be quicker for the respondent, TPAV and its members if there was a private process of determination rather than for each individual claim to be submitted to the FairWork Commission.
In the period 17 October 2016 to 6 January 2017, extensive discussions took place between members of TPAV and the respondent as to the type of arbitral model that would be appropriate to determine the claims. During those discussions, the parties joined in the preparation of an agreed procedure that would regulate the conduct of such an arbitration. The applicant deposed that he had not been informed of these negotiations and expressed surprise that there had been no consultation.
On 1 November 2016, Sheppard sent the claimants an email recording that some had expressed a desire to press the application before the FairWork Commission. He noted the view expressed by TPAV that it would defer the adoption of that course at that stage. Sheppard also advised that a meeting had been convened with TPAV to discuss the matter further. The purpose of that meeting was to conduct a question and answer process to enable claimants to gain some insight into the progress of the claims. The applicant did not attend the meeting.
On 17 November 2016, Sheppard sent an email to each of the claimants, including the applicant, recording the outcome of their meeting with TPAV including that TPAV considered it was preferable to pursue the determination of their claims by means of an independent private arbitration rather than to make application to the FairWork Commission. Again, claimants were advised that it they preferred to make a claim before the FairWork Commission they should inform TPAV of their decision to do so.
Appointment of arbitral panel
On 6 January 2017, TPAV and the respondent agreed that the dispute comprised in the respondent’s rejection of the COT Allowance claims by Task Force members would be resolved by private arbitration. Amongst the matters agreed between those representatives were that:
(a)where a member or group of members believe they are entitled to the COT, they will submit their claim to Victoria Police’s Commuted Overtime Manager as well as to TPA;
(b) Victoria Police and TPA will meet to review the claim;
(c) if agreement is not reached, the claim will be referred to the COT Disputes Panel for consideration and determination as to whether the claimant(s) is entitled to the COT;
(d) the Panel will comprise a representative of Victoria Police, a representative of TPA, and an independent member;
(e) the member or members on behalf of a group will have the opportunity to appear before the Panel, to present their case, and to answer questions from the Panel;
(f) no further material (beyond the written material submitted to Victoria Police) will be added except in exceptional circumstances and with permission of the Panel;
(g) the Panel will receive and consider the evidence from the claimant, and determine (on a majority basis) whether the claimant or group is entitled to the COT; and
(h) the Panel’s decision will be final and no appeal shall flow from the decision. (emphasis added)
Of immediate significance is that this was an agreed regime.
Each of the respondent and TPAV appointed a representative to the arbitral panel. Notably, the respondent accepted TPAV’s nomination of the independent chair of that Panel. The procedure which had been agreed to regulate the conduct of the arbitration was as follows:
Commuted Overtime Disputes Procedure
Disputes over an entitlement for Commuted Overtime shall be resolved in accordance with the following procedure:
1. Where a member or group of members believe that they should be entitled to the payment of Commuted Overtime (COT1 or COT2) or believes that the applicable dates offered by Victoria Police are incorrect, they will submit their claim together with the evidence that they believe demonstrates their entitlement. This material shall be marked to the attention of the Commuted Overtime Disputes Panel and shall be supplied to both the Commuted Overtime Manager . . . email address and to the Association . . .
2. The Force and the Association will meet to review the claim and discuss whether they can agree on the merits of the claim or whether further information is required. If further information is required, the Force and the Association will meet again following the provision of that information
3. If the Force and the Association cannot agree on the merits of the claim, the claim and the supporting material will be referred to the Commuted Overtime Disputes Panel for consideration and determination.
4. The Commuted Overtime Disputes Panel will comprise 3 members:
·A representative of Victoria Police
·A representative of the Association and
·An independent member. The independent member will be Mr Paul Evans, Mr Fred Johansen or other person agreed between the Force and the Association.
5. The member or members on behalf of a group will have the opportunity to appear before the Commuted Overtime Disputes Panel to present their case and to answer any questions from the panel. The member(s) or management will not be able to add any further material except in exceptional circumstances and with the express permission of the Panel.
6. The Commuted Overtime Disputes Panel will consider the submission and shall decide whether the submission is accepted. The panel shall decide on a majority basis. The Panel’s decision will be final and no appeal shall flow from the decision.
(emphasis added).
On 9 January 2017, TPAV sent an email to the COT Allowance claimants informing them that TPAV had agreed with the respondent upon the determination of their claims by private arbitration which would commence on 6 February 2017. The email stated in part:
If you are planning to submit a dispute, please make sure that you have been through the three steps of the agreed Commuted Overtime procedure and have contacted the Association for advice.
On 24 January 2017, Sheppard sent an email to each of the claimants for a COT Allowance, including the applicant, advising them of the establishment of the arbitral panel, the members of which were authorised to reach a majority decision upon the claims and whose decision was binding and not subject to further review. The email stated in part:
The decision is binding and no further review is available – this means that we can’t take it to the FairWork Commission if we’re not happy with the review panel’s decision.
I have had to provide a further report in order to have our case put before the review panel. (emphasis added)
Sheppard’s email advised that he had written a draft report and provided it to TPAV for its advice and recommendations. He stated that the final report, which was due by 6 February 2017, would be provided to the claimants. The applicant, who received this email, deposed in relation to its contents as follows:
On 24 January 2017 I received an email from SS Sheppard sent to the Taskforce members which is exhibit “DPS-15” to the affidavit of SS Sheppard. The email informed us that Victoria Police and TPAV had agreed to conduct a private arbitration to address the Taskforce claims for COA. A review panel (the Panel) was to be established to determine whether or not members of the Taskforce were entitled to the COA. The Panel was to consist of a member of the Victoria Police, a member of the TPAV and an independent member. SS Sheppard stated that the decision of the Panel was to be final and binding and a final report to be completed by 6 February 2017.
The correspondence from SS Sheppard gave the impression that the Panel process was the only means we had available to resolve our disputed COA claims. However, it was not made clear that the Panel would replace and override all dispute resolution options available through the 2011 Enterprise Agreement. I believed that the Panel process was intended to operate in addition to the 2011 Enterprise Agreement dispute resolution procedures, not in place of it. (emphasis added)
The relevance of the applicant’s asserted belief is addressed below.
On 20 February 2017, TPAV lodged its report in support of the claims. Again, this report, which expanded upon that prepared on 4 July 2016, stated that TPAV was authorised by each named claimant, including the applicant, to submit the report on their behalf.
On 27 February 2017, Sheppard sent an email to each of the claimants, including the applicant, advising them that the report had been lodged with the arbitral panel and that TPAV was seeking to ascertain from the respondent whether it would contest the claims.
On 3 April 2017, Sheppard sent an email to each of the claimants, including the applicant, advising them that panel hearings were due to commence mid-April 2017 and that he was prepared to appear on behalf of the claimants. At the same time he offered them the option to appoint another as their representative. The email further recorded that, of the more than 2000 claimants for a COT Allowance, the claims by Task Force members were considered by TPAV to be the strongest.
While the applicant’s affidavit distinctly addressed a number of issues raised by the respondent’s affidavits, he did not depose that TPAV had not been authorised by him to submit the reports to the Panel or that he had chosen the option of other representation in that arbitration.
On 7 April 2017, TPAV sent an email to each of the claimants for a COT Allowance, entitled:
Members now have the right to appeal rejected Commuted Overtime Allowance (emphasis in original)
The body of TPAV’s email also described the arbitral panel as an appeal process and advised of the composition of the Panel and its process:
The appeal process will involve members submitting their rejected claims(s) to a tri-parte panel consisting of one representative from Victoria Police, the [TPAV] and an independent chair.
Members will be afforded an opportunity to appear before the panel to speak in favour of their claim and explain why they believe it should not have been rejected in the first instance. The decision of the panel will be binding (emphasis added)
Claimants were advised as to how they should invoke their right of appeal and of the deadline stipulated for doing so.
On 20 April 2017, Sheppard sent an email to each of the Task Force claimants, including the applicant, advising that the respondent had again rejected their claims with the result that they would proceed before the arbitral panel. The email also advised that claims from other non-Task Force officers were then being considered by that Panel.
On 17 May 2017, Sheppard sent an email to each of the Task Force claimants, including the applicant, advising them of the date upon which the panel hearings were scheduled to occur and attaching a copy of the submission lodged by TPAV. The applicant received this submission.
The hearing before the Panel in relation to the claims of the Task Force members began on 24 May 2017. Sheppard appeared on behalf of the claimants, not TPAV, including the applicant. He did so after having been reminded by the independent representative that the Panel determination was agreed to be final and binding and that the Panel would decide the claims on a majority basis. Sheppard’s evidence was that he had replied he was happy to proceed as no claimant had raised objection to the arbitral process. None of the claimants appeared at the Panel hearing. Sheppard both gave evidence and made submissions to the Panel. Sheppard’s affidavit described the types of matters upon which he had been questioned and given evidence.
Following the hearing on 24 May 2017, Sheppard sent an email to the claimants providing them with a report in relation to the conduct of the hearing before the Panel.
For a variety of reasons, the Panel hearing was adjourned to 21 June 2017. Again, Sheppard appeared and again no claimant appeared.
At the conclusion of the hearing, the independent representative announced that the Panel determination was that, based upon the written and oral evidence and submissions, the Task Force became an investigative unit with effect from 21 July 2012. In the result, the Panel’s determination was to partially uphold the claims.
Sheppard asked whether he was free to inform the claimants of that decision and was told that he could do so. The independent representative said that he saw no reason why he could not do so since it’s decision was final and binding. Accordingly, on 21 June 2017, Sheppard sent an email to the Task Force claimants, stating in part:
The COT hearing was today at 9am. The claim was successful with a caveat that will impact some of you.
The Panel agreed that Taskforce Razon is an investigative unit but in contention was the date that they determined Taskforce Razon became an investigative unit.
The panel decided that the date Taskforce Razon became an investigative unit was 1/7/2012 and back pay will be paid up to (sic, from) that date.
Sheppard’s email, which described the result as a “bittersweet victory”, thanked all claimants for their support.
On 10 August 2017, Sheppard sent an email to each of the Task Force claimants, including the applicant, providing them with a copy of the Panel’s decision. The decision to uphold the claims had been unanimous. It stated, relevantly, as follows:
Panel Decision:
Upon review of the written submissions made by Taskforce RAZON plus the oral submissions made on the day the review panel determined the following:
· Taskforce RAZON is an investigative unit; and
· Taskforce RAZON does perform similar duties to a detective as per the criteria outlined by the Fair Work Commission Recommendation.
It was determined by the panel that the nature of the work completed by Taskforce RAZON changed into an investigative unit after the taskforce was initially established. As this is the case, back payments to 1 July 2009 are not supported.
The panel agreed that 1 July 2012, the date the Liquor Control Further Amendments Act 2011 came into effect as a pivotal point in time when the duties of Taskforce RAZON changed.
Therefore it was determined that Taskforce RAZON are eligible for payment of commuted overtime, including back payment to 1 July 2012. (emphasis in original)
It will be noted that the Panel selected the commencement of the Liquor Control Further Amendments Act 2011 (Vic) as the date from which members of the Task Force would be eligible for the COT Allowance.
It will be recalled that the Recommendation as approved by the FairWork Commission was that the parties should execute terms of settlement and that this should occur before any payment was made. On 25 September 2017, the applicant received from the respondent a deed of release which stated that he would be paid $3,520.91 respecting his claim for a COT Allowance. The applicant did not sign that deed.
On the same date, the applicant received a telephone call from a member of TPAV who had been its representative on the Panel. The applicant made notes of the discussion in which the applicant deposed he had voiced his concerns about the conduct of the arbitral proceeding. He asserted that he had been denied natural justice as the decision to select the eligibility date of 1 July 2012 had not been made on evidence. The applicant made a request for a copy of the material held by TPAV.
On 26 September 2017, TPAV advised the applicant that the file retained by its representative in relation to the arbitration was available for collection. In the period 26-28 September 2017, the applicant posed a series of questions to the respondent’s claims manager and to TPAV respectively in relation to what he described as the COT Dispute. He received a response to some of the queries made of TPAV-Legal.
No application has been made to set aside the Panel’s decision.
Demand for COT Allowance
On 17 October 2017, the applicant’s lawyers wrote to the respondent making demand for payment of the COT Allowance. The applicant’s lawyers set out in some detail the history of the applicant’s employment and, as concerned the arbitral panel, stated that:
a)the applicant had received Sheppard’s email of 24 January 2017, advising that “The decision of the Panel was to be final”;
b)the composition of the Panel was to comprise a member of the respondent, TPAV and an independent member;
c)he had received the Panel decision on 10 August 2017;
d)he contested the basis on which the Panel had grounded its decision whereby the COT Allowance entitlement arose from 1 July 2012;
e)he had received a settlement deed and advice he would be paid a settlement sum of $3,520.91 calculated on the basis of the applicant’s performance of his work with the Task Force from 1 July to 17 December 2012;
f)he had contacted TPAV on 25 September 2017, and advised it of his concerns in relation to the conduct of the arbitral process.
In short, the applicant was dissatisfied with the arbitral process. At the same time, his demand did not assert that he had been unwilling to participate in, or had sought to withdraw from, that process. It seems implicit that the applicant would have been prepared to abide the result of the arbitral process had his claim been wholly successful.
The demand made by the applicant’s lawyers alleged that the failure to pay their client the COT Allowance for the entire period of his employ with the Task Force constituted a breach of the 2007 and 2011 Enterprise Agreements. The claim made was for the payment of the allowance quantified at $20,649.54. The demand included a claim for interest of $12,778.11 calculated under the Penalty Interest Rates Act 1998 (Vic) from 25 September 2011 and foreshadowed that a claim for the imposition of penalties under the Act would also be made.
On 27 October 2017, the respondent’s lawyers replied to the demand. The response foreshadowed unambiguously the respondent’s attitude to the applicant’s demand.
On 20 November 2017, the applicant commenced this proceeding.
The respondent’s evidence is that the applicant is the only police officer to have made a claim despite the Panel’s decision. There is some evidence that ~2,000 claims for a COT Allowance were made.
Consideration
The issues raised by the application in a case are fourfold:
a)should the proceeding be set aside as being beyond jurisdiction?
b)should the proceeding be stayed as an abuse of process?
c)should part of the proceeding be dismissed as being statute barred?
d)has a non-Federal claim been made which is within the accrued jurisdiction of the court which may now be pursued?
Consideration of each of those matters requires an examination of the claim that is made, operative provisions of the Enterprise Agreements and the effect of the Panel decision upon the asserted claim.
The claim and the jurisdictional objection
By his amended statement of claim, the applicant alleges that the respondent has contravened s 50 of the Act, grounded upon an alleged entitlement to a COT Allowance under the operative provisions of the 2007 and 2011 Enterprise Agreements. Notwithstanding the Panel determination that the applicant is entitled to a COT Allowance with effect from 1 July 2012, by this proceeding, the applicant claims an entitlement to such allowance calculated upon the whole of the period of his employ at the Task Force; namely, July 2010 – December 2012.
Section 50 of the Act reads:
50 Contravening an enterprise agreement
A person must not contravene a term of an enterprise agreement
Section 50 is a civil penalty provision: s 539(1).
Despite the brevity of the allegations in the amended statement of claim, it was implicit in the pleading that the claim under s 50 depended upon it being established that the Enterprise Agreements applied to the applicant and in turn, that the applicant was covered by those agreements.[5] Whether the applicant was entitled to rely upon and enforce those agreements directed attention to the criteria of whether those agreements were in operation and covered the applicant.[6]
[5] Fair Work Act 2009, ss.51-52.
[6] Fair Work Act 2009, ss.52(1), 53-54.
It was not in contest that the Enterprise Agreements applied to and covered the applicant. To the contrary, the applicant’s claim for recovery of the loss and damage which he alleged depended upon their doing so. The parties’ submissions proceeded upon the basis that an accrued entitlement under the 2007 and 2011 Enterprise Agreements remained available to be enforced, and so did not address the effect of their having ceased to operate: s 54(2). As concerned the 2007 Enterprise Agreement, it was submitted that a failure to pay a COT Allowance under this agreement also constituted a contravention of s 50 by reason of the operation of Item 2(2), Sched 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).
A justiciable matter
The primary objection raised by the respondent to the institution of this proceeding is that the jurisdiction of this court is not engaged.
By reason that any Australian court is of limited jurisdiction, the first duty of a court is to satisfy itself that its jurisdiction is properly invoked: Federated Engine Drivers’ & Firemen’s Association of Australasia v Broken Hill Pty Co Ltd.[7] For that reason, there is no doubt that the court is seized of jurisdiction to determine whether it had jurisdiction; that is, “the authority to hear and determine a controversy”: Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia.[8] Put another way, the court “necessarily has jurisdiction to determine whether it has the jurisdiction purportedly invoked in any proceeding”: Commonwealth of Australia v Lyon.[9]
[7] (1911) 12 CLR 398, 415 (Griffith CJ).
[8] (2003) 128 FCR 507, [11] (Black CJ, Beaumont and Hill JJ).
[9] (2003) 133 FCR 265, [8] (Branson, Madgwick and Hely JJ).
The court has such original jurisdiction as is vested in it by laws made by the Parliament.[10] Chapter 4 of the Act addresses Compliance and Enforcement, and is arranged in two Parts, comprising ss 537-572. Part 4-1, deals with Civil Remedies while Part 4-2 concerns the Jurisdiction and powers of courts. By s 566, jurisdiction is conferred on this court “in relation to any civil matter arising under this Act.”[11]
[10] Federal Circuit Court of Australia Act 1999 (Cth), s.10(1).
[11]Jurisdiction conferred on this court under s.566 is to be exercised in the Fair Work Division of the court where application is made under the Act: s.567.
For the purposes of s 566, the identification of a ‘matter’ proceeds by reference to principles upon which federal jurisdiction is engaged under the Constitution. The applicable principles were restated by the plurality in Palmer v Ayres:[12]
A “matter”, as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding – “controversies which might come before a Court of Justice” (emphasis added). It is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy. What comprises a “single justiciable controversy” must be capable of identification, but it is not capable of exhaustive definition. “What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships”.
The requirement that, for there to be a “matter”, there must be an “immediate right, duty or liability to be established by the determination of the Court” reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy, and, further, that only a claim is necessary. A matter can exist even though a right, duty or liability has not been, and may never be, established. (Citations omitted)
[12] [2017] HCA 5, [26]-[27].
The question that arises under s 566 is whether the right that is sought to be enforced by the applicant in this case owes its existence to a provision of, or depends upon, the Act for its enforcement: see Duggan v Metropolitan Fire and Emergency Services Board.[13] More precisely, in the present case, to engage jurisdiction under s 566, it was for the applicant to demonstrate the existence of a genuine and immediate right, duty or liability grounded upon an entitlement to a COT Allowance under an enterprise agreement for the relevant period and which thereby supported an alleged contravention of s 50 of the Act.[14]
[13][2017] FCAFC 112, [46] (Tracey, Wigney and O’Callaghan JJ), citing LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581–582 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); Re McJannet; Ex parte Australian Workers’ Union of Employees (Q) (No.2) (1997) 189 CLR 654 at 656–657 (Brennan CJ, McHugh and Gummow JJ).
[14]See also Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245, [60]-[62], (Bromberg J).
The respondent submitted that no issue was presented in the proceeding as to whether an issue arose under the Act. Although the applicant made no submission to the contrary, I understood the submission to mean that a claim could arise under s 50 where an employer had breached an enterprise agreement, including by non-payment of an accrued entitlement to a COT Allowance.
Rather, the jurisdictional objection was that there was no civil ‘matter’ by reason that the decision given by the Panel precluded the applicant from asserting in this court the claim which has been determined in that arbitration. In short, it was submitted that as the Panel had decided the applicant’s claim for a COT Allowance for the relevant period, there was no longer a justiciable controversy and accordingly, no civil matter under the Act capable of attracting jurisdiction under s 566.
The respondent maintained that, by submitting the COT Allowance claims to arbitration, the parties thereby conferred authority upon the Panel to conclusively determine the claims and that it had done so, such that its determination extinguished the original cause of action under the Enterprise Agreements substituting in its place a determination as to the existence of liability and the measure of liability both insofar as the Panel had upheld and in part dismissed those claims.
It was further submitted that the Panel’s decision operated by way of satisfaction of the accord of the cause of action upon which the Panel gave its award. The respondent’s fundamental objection was that, once the Panel had delivered its decision, the law would give full effect to that decision and accordingly would preclude recourse to the original cause of action so as to permit the applicant to reassert the same claim. Upon those principles, it was said that the court’s jurisdiction to adjudicate the original cause of action was gone from the moment the Panel decision was given and in its place the applicant obtained a new right to enforce the award, being a right which was enforceable at common law.
In reply, the applicant’s primary submission, which I reject, was that the application in a case should not be determined until the respondent had filed a defence to the claim. It was said that the scope of the issue should be refined by pleadings and then be resolved at trial. This primary submission flew in the face of the parties’ agreement as reflected in the orders made on 22 December 2017, whereby the issue was to be determined upon the hearing of an application in a case. Had the applicant proposed that pleadings were the appropriate way of advancing the resolution of the issues posed in this application, it was for his lawyers to have said so well in advance of the hearing.[15] The applicant’s primary submission against the hearing of the application was also counter to settled case management principles including that the proceeding should be conducted in a manner as would facilitate the just resolution of the dispute according to law as quickly, inexpensively and efficiently as possible: UBS AG v Tyne as trustee of the Argot Trust.[16]
[15] Federal Circuit Court of Australia Rules 2001 (Cth), r.1.03(4).
[16] [2018] HCA 45, [6] (Kiefel CJ, Bell and Keane JJ).
The applicant then submitted that the respondent’s jurisdictional argument presupposed that the Panel was exercising private arbitral powers and that, absent an instrument executed by the applicant, it was not open to determine the issue until trial. Alternatively, it was said that even if TPAV was acting with the applicant’s authority in relation to the arbitration of the claim: (a) the agreement to submit to arbitration did not entail an agreement to forego a right to enforce entitlements under the relevant Enterprise Agreements; (b) the arbitral process was intended to operate in addition to the dispute resolution procedures established by those Enterprise Agreements and not in substitution of them. As developed in the course of oral submissions, it was submitted that the Panel’s decision did not ‘snuff out’ the statutory rights conferred by s 50.
An understanding of those conclusions requires consideration of the statutory scheme by which an Enterprise Agreement is approved by the FairWork Commission and the effect of such approval.
Dispute resolution under the Act
Statutory regulation supplying the means of dispute resolution in industrial relations has been in place in Australia for over a century.
Presently, those means are provided by the Act, an object of which is to enable fairness and representation at work, including the right to be represented, by providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms.[17] Chapter 2 of the Act, which concerns the subject Terms and Conditions of Employment, is arranged in nine Parts and comprises ss 41-333A. Division 2 of Part 2-1 contains the core provisions of Ch 2.
[17] Sub-s 3(e).
Within Div 2, s 43 identifies the main terms and conditions of employment that are provided by the Act and includes, by par 43(1)(b), those which concern Enterprise Agreements. Section 50, which lies within sub-div D of Part 2-1, proscribes that a person must not contravene a term of an Enterprise Agreement. Section 54 governs the operation of an Enterprise Agreement and provides for the circumstances in which such agreements cease to operate.
Part 2-4 addresses Enterprise Agreements, is organised in 11 Divisions, comprises ss 169-257 and so makes elaborate provision regulating the means by which an Enterprise Agreement may be approved. An express object of Part 2-4 is to provide a simple, flexible and fair framework that enables collective bargaining in good faith “particularly at the enterprise level, for enterprise agreements that deliver productivity benefits.” This object should be read with the primary objects of the Act set out at [117] above.
Sub-division B of Part 2-4 provides for approval of an Enterprise Agreement. By s 186(6), the FairWork Commission must approve an Enterprise Agreement which provides a procedure that requires or allows the FairWork Commission or another person to settle disputes.
Within Ch 5, Administration, Pt 5-1 regulates the office of the FairWork Commission whose functions include those relating to Enterprise Agreements, promoting workplace relations and preventing disputes, dealing with and mediating disputes: ss 576(c), 577. Division 3 of Part 5-2 concerns the Conduct of matters before the FWC, and confers power on the FairWork Commission to deal with disputes, including by mediation, conciliation, recommendation and arbitration: s 595(2).
Chapter 6 of the Act addresses a miscellany of issues, including by Part 6-2, Dealing with Disputes. Part 6-2 applies where a term of an Enterprise Agreement contains a term of the kind addressed by s 186(6). Within Pt 6-2, s 739(4) confers power on the FairWork Commission to arbitrate a dispute where an Enterprise Agreement contains a term by which the parties have agreed that it may do so.
Thus, the combined effect of ss 595 and 739 is to confer powers on the FairWork Commission to seek to resolve or determine a dispute by means of mediation, conciliation, recommendation and arbitration in those cases where an Enterprise Agreement contains a term by which the parties have agreed that it may do so.
It is convenient to recognise that the term ‘arbitration’, which takes its meaning from the context in which it is used, denotes both a statutory form of arbitration and a process by which disputes are to be settled by a third party. Historically, earlier systems regulating the process of dispute resolution in industrial legislation was regarded as providing a means of consensual resolution of disputes by private arbitration.[18]
[18]Construction, Forestry, Mining and Energy Union of Australia v Australian Industrial Relations Commission (2001) 203 CLR 645, [30]-[31].
Of immediate significance is recognition of the proscription effected by Ch III of the Constitution that a body such as the FairWork Commission cannot, by arbitrated award, require parties to submit to binding procedures for the determination of legal rights and liabilities. Contrastingly, it is incidental to the conciliation and arbitration power for the Parliament to permit parties to an industrial situation to agree on the terms on which they will settle the matters in issue between them conditional upon their having the same legal effect as an award: Construction, Forestry, Mining and Energy Union of Australia v Australian Industrial Relations Commission (AIRC decision).[19]
[19](2001) 203 CLR 645, [29] (per curiam) citing Industrial Relations Act Case (1996) 187 CLR 416, 538.
Further, the FairWork Commission may approve an Enterprise Agreement in which the parties have themselves agreed to submit their disputes for the determination of such rights and liabilities by a particular person or body. In the AIRC decision, the High Court held that:[20]
Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. . . in the case of private arbitration, however, the arbitrator’s powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator’s award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.
See also, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd.[21]
[20] (2001) 203 CLR 645, [31].
[21] (2015) 235 FCR 305, [30]-[31] (Dowsett, Tracey and Katzmann JJ).
In TCL Air Conditioner (Zhongshan) Company Ltd v Judges of the Federal Court of Australia,[22] the High Court reiterated that the function of private arbitration was of a function, “the existence and scope of which is founded on agreement as distinct from coercion.” The plurality stated[23] that parties were “free to agree to submit their differences or disputes as to their legal rights and liabilities for decision by an ascertained or ascertainable third party, whether a person or a body.”
[22] (2013) 251 CLR 533 at [29].
[23] (2013) 251 CLR 533 at [75].
In ALS Industrial, the Full Court of the Federal Court held, applying TCL Air Conditioner, it to be “well settled that arbitration by the FairWork Commission pursuant to a term in an enterprise agreement is a private arbitration.”
The authorities considered above confirm the essentially consensual nature of private arbitration which governs the arbitral process in an industrial relations setting, whether it be by the FairWork Commission or by an independent person or body appointed by the parties.
The effect of a private arbitral award was described[24] in TCL Air Conditioner by the plurality as follows:
[24] (2013) 251 CLR 533 at [77]-[79].
However, if parties do go to arbitration and the arbitrator makes an award, the making of the award has legal significance in respect of the parties' dispute and their rights and liabilities. As the plurality in Dobbs[25]said:
"if, before the institution of an action, an award was made, it [the award] governed the rights of the parties and precluded them from asserting in the Courts the claims which the award determined" (emphasis added). In such a case, the arbitrator's award governs the rights of the parties because "[b]y submitting the claims to arbitration, the parties confer upon the arbitrator an authority conclusively to determine them.”[26]
This gives rise to the general rule that an award made by an arbitrator pursuant to such authority is final and conclusive. Further, the arbitrator's making of an award in exercise of such authority both extinguishes the original cause of action and imposes new obligations on the parties in substitution for the rights and liabilities which were the subject of the dispute referred to arbitration. The former rights of the parties are discharged by an accord and satisfaction. The accord is the agreement to submit disputes to arbitration; the satisfaction is the making of an award in fulfilment of the agreement to arbitrate.[27]
It follows that when an arbitral award is enforced by curial process, the obligations sought to be enforced are those which are created by the award in substitution for the rights and liabilities which were the subject of the dispute referred to arbitration. A party may sue on an award as a cause of action or, in some cases, as in this case, seek enforcement of the award pursuant to the IA Act.
The conclusions expressed by Hayne, Crennan, Kiefel and Bell JJ above were grounded upon the seminal statement of principle in Dobbs v National Bank of Australasia.[28] In separate reasons, French CJ and Gageler J spoke of the substantive conception which had underpinned the understanding of an arbitral award at common law:[29]
. . . as “a satisfaction pursuant to [the parties'] prior accord of the causes of action awarded upon” and as thereby “precluding recourse to the original rights the determination of which had been referred to arbitration”[30]. That conception, in short, is that “the foundation of arbitration is the determination of the parties' rights by the agreed arbitrators pursuant to the authority given to them by the parties”[31]
[25](1935) 53 CLR 643 at 653. See also Minister for Works (WA) v Civil and Civic Pty Ltd (1967) 116 CLR 273 at 284; CFMEU (2001) 203 CLR 645 at 658 [31].
[26](1935) 53 CLR 643 at 653. See also McDermott v Black (1940) 63 CLR 161 at 183-185; Doleman & Sons v Ossett Corporation [1912] 3 KB 257 at 267.
[27]Citing Mustill and Boyd, The Law and Practice of Commercial Arbitration in England, 2nd Ed (1989) at 439.
[28] (1935) 53 CLR 643, 652-654 (Rich, Dixon, Evatt and McTiernan JJ).
[29] (2013) 251 CLR 533 at [9].
[30] Citing Dobbs, (1935) 53 CLR 643 at 653-654.
[31]Citing Associated Electric and Gas Insurance Services Ltd v European Reinsurance Co of Zurich [2003] 1 WLR 1041 at 1046 [9].
More recently, in Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Bromberg J held[32] that once an arbitration had been seen through to completion and a determination rendered, “that determination extinguishes the original dispute and replaces it with the determination. It is the arbitral determination that then determines the rights and obligations of the parties bound by it.” His Honour’s decision was upheld on appeal: Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.[33]
[32] [2017] FCA 1245, [67].
[33] [2018] FCAFC 146, [34], [92] (Rares and Barker JJ), [138] (Flick J).
Insofar as the applicant relied upon the absence of an instrument signed by him as denying a conclusion that the Panel was exercising private arbitral powers, I consider that this submission is without substance. The TPAV was not a mere agent for its members but stood in their place and acted on their own account, being representative of those members: cf Burwood Cinema Ltd v Australian Theatrical and Amusement Employees Association;[34] R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia.[35] Upon those authorities, in Energy Australia Yallourn, Bromberg J held that a person who was a party to a conciliation and arbitration was bound by the outcome.[36] Contrary to the applicant’s submission I consider the applicant was no less bound by the Panel’s determination. Importantly, as counsel for the respondent submitted, the COT claimants, not TPAV, were the claimants in the arbitration and in which they had agreed.
[34](1925) 35 CLR 528, 551 (Starke J).
[35] (1957) 97 CLR 71, 84 (Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ).
[36] [2017] FCA 1245, [101]-[106] (Bromberg J).
Accordingly, subject to the exception that an award was liable to be set aside for error on the face of the record, where a cause or matters in difference are referred to an arbitrator, whether lawyer or layman, the arbitrator is constituted the sole and final judge of all questions of fact and law.[37] This was the process to which the applicant had agreed and was bound, including that the Panel’s decision was to be final, binding and, save for the exception noted, was not subject to appeal.
[37] ALS Industrial at [36] citing TCL Air Conditioner; [97].
The Enterprise Agreements
Although the 2015 Enterprise Agreement was the operative Enterprise Agreement at the time of determination of the arbitration, the parties made no submissions respecting the relevance of any distinction between the three agreements, it being assumed that the entitlement to the COT Allowance depended, in each case upon a relevantly identical provision in each such agreement. Having regard to the applicant’s period of employ at the Task Force, such entitlement would have accrued initially under the 2007 Enterprise Agreement and then under the 2011 Enterprise Agreement. I note that the applicant had ceased to work at the Task Force before the 2015 Enterprise Agreement became operative. However, it is convenient to trace the process of approval of that agreement under the legislative regime provided by the Act.
Each of the 2007, 2011 and 2015 Enterprise Agreements[38] made extensive provision regulating the terms and conditions of employment of the persons who were covered by those respective agreements.
[38]Although they are in substantially similar terms, for the most part it is convenient to address the terms of the 2015 Enterprise Agreement for the purposes of the present application.
The 2015 Enterprise Agreement had been given the approval of the FairWork Commission in accordance with the legislative regime for approval of such agreements as provided for by Part 2-4, Div 4, Ch 2 of the Act. Such approval was given, on 21 March 2016 having been supported and sought respectively by the respondent and the applicant’s bargaining representative, the Police Federation of Australia.
As noted above, the Enterprise Agreements contained a term by which the parties had agreed that the FairWork Commission should have power to arbitrate a dispute. In giving effect to the parties’ agreement that it should be conferred with such power, the FairWork Commission was empowered to arbitrate a dispute pursuant to s 739(4).
It follows from the fact of approval by the FairWork Commission of the 2011 and 2015 Enterprise Agreements that that Commission was affirmatively satisfied, in accordance with par 186(6)(a), that those agreements contained a term providing a procedure whereby the Commission or an independent person could settle disputes.
Operative provisions
Part 1 of the 2015 Enterprise Agreement was entitled Operation of this Agreement and comprised cll 1-11.
The 2015 Enterprise Agreement settled, for its duration, all of the claims of the parties and those they represented.[39]
[39] 2011 Enterprise Agreement, cl 4.1; 2015 Enterprise Agreement; cl 4.1 “No Extra claims”.
It is not unimportant that each of the Enterprise Agreements were expressed to be binding upon the respondent, the Police Federation of Australia and the relevant Police officers.[40] Further, cl 3 read:
[40]2011 Enterprise Agreement, cl 2; 2015 Enterprise Agreement; cl 2.1 “Coverage/Application”.
3. Application Clause
3.1This Agreement is intended to have effect as an Enterprise Agreement under the FW Act only to the extent that the matters dealt within it are covered by the reference to the Parliament of the Commonwealth under the Fair Work (Commonwealth Powers) Act 2009 (FWCP Act) as amended or replaced from time to time.
3.2Where a provision of this Agreement deals with a matter that is not covered by the reference under the FWCP Act:
(a) that provision will be deemed not to have formed part of this Agreement as intended to be approved under the FW Act; but
(b) that provision will in every other respect, to the extent permitted by law, stand as a legally binding agreement between the parties hereto; and
(c) apart from that provision, this Agreement will have full force and effect under, and to the extent permitted by, the FW Act.
The agreement was expressed to be operative for a period of four years from the date of approval by the FairWork Commission or 30 November 2019, whichever be the earlier.[41]
[41] 2015 Enterprise Agreement, cl 5.3.
Dispute resolution under the Enterprise Agreement
Clause 10, entitled Dispute Resolution, made extensive provision regulating the mechanisms for the resolution of disputes. The Police Federation of Australia was expressly agreed to be a ‘party’ for the purposes of cl 10 (and thus the subject matter with which it dealt).
Subject to two exceptions which are not presently material, the parties to a dispute were obliged to first attempt to resolve at a workplace level any dispute which arose in relation to any matter under the agreement.[42] The parties to such dispute were entitled to be represented in doing so.[43] Where the dispute was not settled at a workplace level, or it was otherwise deemed inappropriate to seek to resolve the matter at that level, the parties or their representatives were entitled to seek that the matter be discussed with an alternative employer representative.[44]
[42] 2015 Enterprise Agreement, cl 10.2.
[43] 2015 Enterprise Agreement, cl 10.3.
[44] 2015 Enterprise Agreement, cl 10.4.
Failing settlement of the dispute in the manner described above, cll 10.5 – 10.8 regulated the means by which the dispute might be addressed before the FairWork Commission. In particular, the agreement provided that the dispute would initially be dealt with by way of conciliation.[45] Either party was entitled to adopt that course. Failing resolution by means of conciliation, either party was entitled to seek that the dispute be resolved by means of arbitration, including for interim relief.[46]
[45] 2015 Enterprise Agreement, cl 10.5.
[46] 2015 Enterprise Agreement, cl 10.6.
Notably, parties to a dispute and their representatives were subject to an imperative obligation to act in good faith in relation to the dispute, and parties were generally obliged to remain at work.[47]
[47] 2015 Enterprise Agreement, cl 10.7 – 10.8.
Of contextual importance to the present application is that cl 10 made express provision as to the binding nature of a determination by the FairWork Commission in relation to the resolution of a dispute which had been submitted to it. Sub-clauses 10.9 – 10.11 read:
10.9Any determination/decision including any interim determination/decision of the Fair Work Commission is binding upon the parties to the dispute and the parties agree to be bound by that determination/decision.
10.10Any determination/decision including any interim determination/decision will be implemented.
10.11An appeal lies to a Full Bench of the Fair Work Commission, with the permission of the Full Bench, against a determination/decision of a single member of the Fair Work Commission made pursuant to this clause. A dispute is not resolved until any appeal has been determined.
In Energy Australia Yallourn both at first instance[48] and on appeal,[49] emphasis was placed upon the need to construe the provisions of an enterprise agreement in a practical way and in a manner likely to have been understood by the relevant industry and industrial relations environment in which it was to operate. Such agreements should not be construed divorced from industrial realities. In particular, recognition should be given to the consequences of statutory approval of the agreements. As Rares and Barker JJ observed, approval of the agreements had the consequence that the terms and conditions of such agreements governed the parties’ rights and obligations.[50] Their Honours referred[51] also to the underlying legislative character of an enterprise agreement which binds all parties as was described by Jessup, Tracey and Perram JJ in Toyota Motor Corporation v Marmara.[52]
[48] [2017] FCA 1245, [74]-[76].
[49] [2018] FCAFC 146, [56]-[58], [74], [78] (Rares and Barker JJ).
[50][2018] FCAFC 146, [59], citing Aldi Foods Pty Ltd v Shop Distributive and Allied Employees Association (2017) 350 ALR 381, [26]-[34], [78] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ).
[51] [2018] FCAFC 146, [60], [78]-[80].
[52] (2014) 222 FCR 152, [89]-[90].
There is no matter arising under the Act
The parties’ agreement to submit, and the submission of, the claims for a COT Allowance for determination by private arbitration was entirely consistent with the dispute resolution process embodied in the Enterprise Agreements. In submitting the claims for determination, the parties conferred upon the Panel the authority to conclusively determine their dispute. While it was open to the applicant to revoke his authority to submit his claim to arbitral determination, he did not do so.
The effect of the Panel’s determination was to conclusively determine that the applicant has: (1) no entitlement to a COT Allowance for the period prior to 1 July 2012; (2) an entitlement to that allowance for the period prior from 1 July 2012 until the completion of his service with the Task Force. The entitlement so established is in substitution of the asserted causes of action which were extinguished by that determination.
Once the Panel had delivered its decision, this extinguished the asserted causes of action for payment of a COT Allowance under the Enterprise Agreements. Such extinguishment necessarily denies the existence of any entitlement to payment of such allowance under those agreements. From this it must follow that there is nothing upon which an alleged breach of s 50 could be grounded. As a consequence, there is no civil matter capable of attracting the operation of s 566. There is no justiciable ‘matter’ upon which s 566 can operate to confer jurisdiction on this court. I conclude that the court has no jurisdiction under s 566 in respect of an alleged contravention of s 50 of the Act.
Despite the applicant’s objection to the Panel’s decision, including that no instrument had been executed by the applicant referring his claim for a COT Allowance arising from his service as a Task Force member:
a)counsel for the applicant eschewed any challenge to the Panel’s decision, by reason of error on the face of the record or otherwise;
b)it is clear that an arbitration was constituted by the parties’ consensual reference of their dispute to a third party for binding resolution and that no particular language is necessary to do so;[53]
c)it is not to the point that TPAV, rather than the applicant, had agreed to the establishment of an arbitral panel and that its decision should be final and binding. TPAV represented its members including the applicant in the arbitral process before the Panel;
d)nor the applicant’s asserted subjective intention relevant to the meaning or operation of the provision that the Panel’s decision should be final, binding and not subject to appeal;[54]
e)there was nothing ambiguous in the meaning of the provision that the Panel’s decision should be final and binding.[55] It was plain that the parties expressly agreed that the Panel’s decision upon the claims by Task Force members, including the applicant, for a COT Allowance was to be final and binding and that no appeal would flow from its decision;
f)if parties to an arbitral process intend that there should be no appeal, they should say so.[56] In the present case, the written procedure of the COT Allowance Panel expressly provided that its decision was to be final, binding and that no appeal shall flow from its decision.
[53] ALS Industrial, supra, (2015) FCR 305, at [53].
[54]ALS Industrial, supra (2015) FCR 305, [102]-[106] and cases cited; Energy Australia Yallourn, supra [2018] FCAFC 146, [84]-[89].
[55] ALS Industrial, supra (2015) FCR 305, at [138].
[56] ALS Industrial, supra (2015) FCR 305, at [57].
To adapt the reasoning in TCL Air Conditioner,[57] the proposition underpinning the applicant’s submission assumed, wrongly, that the rights and liabilities which were in dispute before the Panel continued despite the making of its determination. They “assume[d], wrongly, that the courts will not give effect to the discharge of those pre-existing rights and liabilities by the accord and satisfaction which is effected by a reference to arbitration and the making of an award.” Further:
To conclude that a particular arbitral award is final and conclusive does no more than reflect the consequences of the parties having agreed to submit a dispute of the relevant kind to arbitration. As has already been noted, one of those consequences is that the parties' rights and liabilities under an agreement which gives rise to an arbitration can be, and are, discharged and replaced by the new obligations that are created by an arbitral award.
[57] (2013) 251 CLR 533, [80], [108].
Accordingly, the court should give effect to the discharge of any pre-existing rights and liabilities comprised in the applicant’s claim for a COT Allowance for the whole of his engagement in the Task Force.
Upon the principles considered above, the applicant’s claim to a COT Allowance ceased to exist upon the Panel giving is decision. The extinguishment[58] of that claim meant that the applicant could not thereafter assert a breach of the Enterprise Agreements in respect of his claim for that allowance. The absence of any breach of those Enterprise Agreements necessarily meant that there was no basis on which to allege a contravention of s 50 and that being so there was no civil matter arising under the Act in relation to the erstwhile claim for a COT Allowance.
[58] Energy Australia Yallourn [2018] FCAFC 146, [92].
The conclusions expressed above cannot be seen in a vacuum. In particular, it is necessary to recognise that the cause of action which previously existed to enforce claims for payment of the COT Allowance has been replaced by the Panel’s determination. It remains for the applicant to enforce that determination. Whether it is open to do so in this court depends upon whether such a claim is made in the court’s accrued jurisdiction (see below). Any enforcement of the Panel’s determination is to be seen in the context that the respondent has, consistently with the FairWork Commission’s Recommendation, proffered a settlement deed and agreed to pay the applicant the sum of his COT Allowance calculated in accordance with the Panel’s decision.
Subject to what follows, the respondent is entitled to an order that the proceeding be set aside: Energy Australia Yallourn.[59]
[59] [2017] FCA 1245, [47]-[48] (Bromberg J); appeal dismissed [2018] FCAFC 146.
Summary judgment
If I am wrong in the conclusion reached in relation to jurisdiction, if falls to consider the first alternative application; abuse of process.
The respondent sought by way of alternative relief that there be summary judgment in the proceeding on the ground that it was an abuse of process.
Where a respondent is defending a proceeding, the court may give summary judgment where it is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding or a part of it: s.17A(2), Federal Circuit Court of Australia Act 1999 (Cth).
Caution must be exercised in considering whether to grant summary judgment. In particular, in Spencer v The Commonwealth,[60] French CJ and Gummow J held that “[w]here there are factual issues capable of being disputed and in dispute, summary judgment should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.” As noted above, the present application arises upon facts which are not in dispute.
[60] (2010) 241 CLR 118.
The power to grant summary judgment is expressed in permissive terms; the court may give judgment and may order that it be dismissed generally or in relation to any claim. Critically, in the case of summary judgment, the power is not engaged unless the court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding. In Upaid Systems Ltd v Telstra Corporation Limited[61], Perram, Jagot and Beach JJ considered the applicable principles not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, stated a series of further propositions, including the following:
a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;
b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;
c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved;
d)fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment;
Those propositions were endorsed by another Full Court in Nichol v Discovery Africa Limited.[62]
[61] [2016] FCAFC 158, 122 IPR 190, [46]-[49].
[62][2016] FCAFC 182 at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15] (Kenny J).
Abuse of process
Summary judgment was sought on the basis that the effect of the Panel’s decision meant that this claim represented an attempt to re-litigate the precise issue that had been decided in the arbitration. So it was said that there was no reasonable prospect of successfully prosecuting a claim for contravention of s 50 by reason that the claim under the 2007 and 2011 Enterprise Agreements for payment of the COT Allowance had been extinguished by the Panel’s decision.
An abuse of process may be made out where a party is estopped from denying the competency of an arbitral determination on the same issue. The principles of estoppel were comprehensively examined in Energy Australia Yallourn. Bromberg J held that the applicant was estopped and precluded from denying the competency of the arbitral process.[63] As the authorities considered by his Honour confirm, the estoppel arose in that case from the conduct of the party who sought to deny the efficacy of the arbitral process brought and decision quelling an industrial dispute.
[63] [2017] FCA 1245, [134]-[148].
When the respondent’s lawyers replied to the applicant’s demand, they explained the stance which would be taken in any claim and why they considered the foreshadowed claim would fail. The attention of the applicant’s lawyers was drawn to the High Court’s decision in Tomlinson v Ramsay Food Processing.[64] Contextually, it should be recognised that the respondent’s lawyers answered the applicant’s demand on 27 October 2017 – more than a year before this application was heard and a month before the applicant’s lawyers instituted this proceeding. Nor is it irrelevant that each of the parties had filed written submissions. The parties agreed in December 2017 upon orders for the hearing and determination of this application. The respondent filed its submissions the day before the hearing while the applicant’s submissions were filed on the morning of the hearing. Despite this sequence of events, the applicant’s written and oral submissions made no mention of the principles in Tomlinson to which attention had been directed in 2017.
[64] (2015) 256 CLR 507.
In Tomlinson, French CJ, Bell, Gageler, and Keane JJ stated, in obiter:[65]
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel. (citations omitted)
[65] (2015) 256 CLR 507, [25]-[26]; see also [90]-[92], (Nettle J).
Although Tomlinson was decided upon issue estoppel, not abuse of process,[66] the principles set out above were employed to emphasise that the doctrine of abuse of process was available to be invoked in an inherently broader and more flexible manner than was issue estoppel. Further, it was of determinative significance that the appellant was held not to be in privity of interest with the FairWork Ombudsman who had earlier brought a proceeding upon the same subject matter.
[66] (2015) 256 CLR 507, [48].
The principles applicable in the determination of an abuse of process application have been recently considered by the High Court in Rozenbilt v Vainer[67] and UBS AG v Tyne as trustee of the Argot Trust.[68] In particular, the latter appeal concerned the scope of the power to permanently stay a process as an abuse of process. Kiefel, Bell and Keane JJ stated:[69]
The varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute.
[67] (2018) 92 ALJR 600.
[68] [2018] HCA 45, [6].
[69] [2018] HCA 45, [1].
While, in UBS AG, the respondent’s institution of a further proceeding was held by 4:3 majority to constitute an abuse of process, the Court was not in dispute as to the applicable principles. The minority considered it to be of importance that the appellant had earlier consented to the discontinuance of another proceeding.
The plurality endorsed the principle that an assessment whether conduct rose to the level of abuse required consideration of all the circumstances and that a broad, merits based approach was warranted so as to take account of both the private and public interests which were involved, including the need to protect both litigants and the system of justice from abuse.[70] Gageler J, who reasoned to similar effect,[71] eschewed the use of ‘oppression’ and notions of public disrepute in the determination of abuse and preferred that an assessment of the relevant public interest by reference to the timely and efficient administration of justice. Nettle and Edelman JJ who dissented in the result, accepted that cases involving the re-litigation of claims that had been determined in earlier proceedings were very different from the subject appeal.[72] Gordon J, who was also in dissent, endorsed the principle that abuse of process was an inherently broader and more flexible doctrine than estoppel.[73]
[70] [2018] HCA 45, [7], [39]-[47].
[71] [2018] HCA 45, [66]-[73].
[72] [2018] HCA 45, [111], [114]-[115].
[73] [2018] HCA 45, [138].
In applications grounded upon abuse of process, it is frequently observed that the applicant bears a heavy burden.[74] It has for that reason been necessary to set out in detail the facts and circumstances giving rise to the claim for the COT Allowance. As the history of the matter indicates, TPAV was intimately involved – and the applicant was actively involved – in the prosecution of the claims for a COT Allowance.
[74] See, eg, UBS AG, [2018] HCA 45, [136] (Gordon J).
That an applicant seeking to have a proceeding stayed permanently as an abuse bears a heavy burden reflects both the variety of circumstances in which abuse of process may be invoked and the significance of the relief that is being sought. However, the present case is not one grounded upon delay. Nor is it dependent upon a conclusion that the present claim is one that could and should have been made in an earlier proceeding. Nor is it essential to a conclusion of abuse that the parties to the proceedings are in privity of interest. The doctrine of abuse of process is inherently broader in its application than issue estoppel.
In UBS AG,[75] the plurality together with Nettle and Edelman JJ recognised that cases in which the doctrine of abuse may apply included those in which an applicant sought to bring a claim that had earlier been decided against him or her: see Reichel v Magrath;[76] Coffey v Secretary, Department of Social Security.[77] To my mind, cases of this kind are amongst the strongest contenders for relief for abuse of process. They stand in stark contrast to cases in which the applicant for a permanent stay grounds the abuse of process contentions on delay or that the claim now being sought is one which could and should have been made earlier.
[75] [2018] HCA 45, [39], [111], [114]-[115].
[76] (1889) 14 App Cas 665.
[77] (1999) 86 FCR 434.
Had I not concluded that there was no matter attracting jurisdiction, I would have held that there was no reasonable prospect of successfully prosecuting a claim for contravention of s 50. The applicant’s institution of this proceeding sought to vindicate a claim for a COT Allowance for the whole of his period of engagement with the Task Force where that very claim had been determined adversely against him by the Panel.
Statute barred
The respondent sought by way of alternative relief that the proceeding be dismissed insofar as the claim had been instituted out of time.
One limitation that is placed upon a person’s ability to apply for an order under Div 2, Part 4-1, is that their application was made within 6 years after the day on which the contravention occurred: s 544.
As in indicated in the course of hearing, I would have accepted the applicant’s submission that it is generally undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings: Wardley Australia Ltd v Western Australia.[78]
[78] (1992) 175 CLR 514, 533 (Mason CJ, Dawson, Gaudron and McHugh JJ).
Claim in debt?
Counsel for the applicant initially put it that, even if the claim under s 50 was not open to be pursued for want of jurisdiction, the application was, as he said, not colourable, and a claim in debt remained to be pursued within the accrued jurisdiction of the court. Beyond those submissions, I was referred to no authority on this issue.
Asked to identify where the amended pleading disclosed a claim in debt, it was immediately conceded that the amended pleading would need to be further amended so as to allow that claim to be made. However, following the brief reply of counsel for the respondent, a further submission was made on behalf of the applicant that a claim in debt was made in [15] of the amended statement of claim. Asked to confirm that submission, it was restated that [15] of the amended pleading was relied upon as making a claim in debt. Paragraph [15] reads:
On 10 August 2017, the Applicant received a copy of the Panel’s decision dated 21 June 2017 (the Decision) which decided, inter alia, that members of the Taskforce were eligible for payment of the Allowance from 1 July 2012 being the date the Liquor Control Further Amendments Act 2011 (the Liquor Act) came into effect.
The allegations in [15] should be read with the allegation made in [18] of the amended pleading being that the respondent’s alleged breach of s 50 caused the applicant to suffer loss and damage.
An action to enforce an award is grounded upon an implied promise by each of the parties to the arbitration that they will perform a valid award. As the learned authors of Mustill & Boyd, Commercial Arbitration observe, “It is first necessary to convert the award into a judgment or order of the court.”[79] The learned authors further consider that the essential elements of the cause of action require an applicant to plead and prove both the arbitration agreement and the award.
[79]2nd Ed (1989) at pp. 416-418. The same view is expressed in Jones, Commercial Arbitration in Australia, 2nd Ed, (2013) at [11.100].
While I do not consider that the amended statement of claim discloses a cause of action based in debt or seeks to convert the award to a judgment, in my view the anterior question is whether the federal jurisdiction of the court has been invoked. To the extent that the Constitution permits, jurisdiction is conferred on the court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the court has been invoked.[80]
[80]s 18, Federal Circuit Court of Australian Act 1999 (Cth).
For the reasons stated at [149]-[156] above, I have concluded that federal jurisdiction has not been invoked. Where no federal jurisdiction has been properly invoked, there can be no accrued jurisdiction: Johnson Tiles Pty Ltd v Esso Australia Ltd.[81] For that reason, no question of colourability arises. It is not a question of whether a tenable federal claim has been raised. Nor is it a question of different claims arising out of common transactions or facts.[82] This proceeding does not entail different claims because there is no federal claim at all and the only available claim (if any) is at common law for enforcement of the Panel’s determination. In those circumstances, no common law claim could be pursued in this court, including by way of amendment. That is because the jurisdictional preconditions to the institution of a non-federal claim in this court have not been met: Picos v Australian Federal Police.[83]
[81](2000) 104 FCR 564, [87] (French J, Beaumont and Finkelstein JJ agreeing) citing Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543, 553 (per curiam).
[82]Johnson Tiles, supra (2000) 104 FCR 564, [83] citing Re Wakim; Ex parte McNally (1999) 198 CLR 543, 586 (Gummow and Hayne JJ, Gleeson CJ, Gaudron and McHugh JJ agreeing).
[83][2015] FCA 118, [51] (Perry J).
If I am wrong in the conclusions expressed above, I would not have exercised the discretion in favour of allowing a claim to remain in this court.[84] In this context also it has been necessary to examine the facts of this case in detail.[85] As a matter of impression and practical judgment and on the facts of this case, I would have declined to allow any claim to remain in this court (by way of proposed amendment to the existing claim). Where the substantive basis of an action to enforce an award is a breach of the implied promise to perform, here the respondent has not breached any such promise but has actively taken steps to see that it’s implied promise will be honoured. I do not see why the respondent should be vexed by a non-federal claim in circumstances where it has already tendered the promise to perform the award.
[84]Johnson Tiles, supra (2000) 104 FCR 564, [90]-[93].
[85]Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112, [46]ff.
Conclusion
The conclusions expressed above do not mean, and are not intended to produce the result, that the applicant is foreclosed from pursuing his claim to enforce the Panel’s determination for the payment of his COT Allowance. If it should be necessary to do so, this cause of action remains to be enforced in a court of competent jurisdiction.[86] The circumstance that the respondent has proffered a deed and undertaken to pay the settlement sum would indicate that the claim is admitted.
[86]Dobbs, supra (1935) 53 CLR 643, 654; TCL Air Conditioner, supra, (2013) 251 CLR 533, [79].
In the circumstances, I will order that the proceeding be set aside. Orders are also made to address any question of costs.
I certify that the preceding one hundred and eighty-six (186) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 16 November 2018
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