Scott v Steritech Pty Ltd
[2023] FCA 1401
•14 November 2023
FEDERAL COURT OF AUSTRALIA
Scott v Steritech Pty Ltd [2023] FCA 1401
File number(s): QUD 236 of 2022 Judgment of: COLLIER J Date of judgment: 14 November 2023 Catchwords: INDUSTRIAL LAW - interlocutory application seeking strike out of statement of claim and summary dismissal – earlier proceedings between same parties in Federal Circuit and Family Court of Australia settled by Deed of Release – Deed of Release barred further proceedings save for “claims under workers’ compensation…law” - fresh proceedings instituted in Federal Court seeking damages and compensation for personal injuries – common substratum of facts in proceedings – whether Federal Court proceedings an abuse of process – whether Fair Work Act proceedings barred by Deed of Release - jurisdiction of Federal Court to hear common law claim for damages – meaning of “claims under workers’ compensation… law” – proper order as to costs Legislation: Constitution ss 76(i), 76(ii)
Fair Work Act 2009 (Cth) ss 45, 50, 340(1)(a)(i), 340(2), 352, 545, 570, 570(2)(a)
Federal Court of Australia Act 1976 (Cth) ss 19(1), 31A, 37M
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Federal Court Rules 2011 (Cth) rr 16.21(1)(f) 26.01(a), 26.01(1)(d)
Workers Compensation and Rehabilitation Act 2003 (Qld) ss 110, 237, 275
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16
Laverick v Westpac Banking Corporation [2020] QSC 333
Mulhern v Pearce(No. 2) [2014] FCA 805
Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156
Sarina v Fairfax Media Publications Pty Ltd [2018] FCAFC 190; (2018) 365 ALR 15
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Tyne (Trustee) v UBS AG (No 2) (2015) 250 FCR 341; [2017] FCAFC 5
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45
Zoiti-Licastro v Australian Taxation Office [2006] 154 IR 1
Division: Fair Work Division Registry: Queensland National Practice Area: Employment and Industrial Relations Number of paragraphs: 57 Date of hearing: 1 March 2023 Counsel for the Applicant: M Black Solicitor for the Applicant: Queensland Workplace and Workplace Injury Law Counsel for the Respondent: Mr S Mackie Solicitor for the Respondent: Ai Group Workplace Lawyers ORDERS
QUD 236 of 2022 BETWEEN: MICHAEL SHANE SCOTT
Applicant
AND: STERITECH PTY LTD
Respondent
ORDER MADE BY:
COLLIER J
DATE OF ORDER:
14 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Statement of Claim filed 7 July 2022 be struck out, and the proceeding be dismissed.
2.The Applicant pay the costs of Steritech Pty Ltd, to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
Before the Court is an interlocutory application filed by the respondent in the substantive proceeding, Steritech Pty Ltd (Steritech) seeking that the statement of claim filed by Mr Michael Scott on 7 July 2022 be struck out, and the proceeding be dismissed. Steritech also seeks costs.
BACKGROUND
The substantive proceeding was commenced in the Federal Court of Australia by Mr Scott by way of originating application and statement of claim filed on 7 July 2022. Mr Scott sought the following relief:
On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims:
1.For contraventions of s 45 and s 50 of the Fair Work Act 2009 (Cth), an order for compensation under s 545 in the sum of $1,191,193.19 or such other amount assessed by the Court.
2.Alternatively, damages of $1,034,423.19 or such other amount as assessed by the Court.
3.Costs
The facts alleged by the applicant were summarised in his submissions as follows:
4. The Applicant’s Statement of Claim (SOC) pleads a series of facts to the following effect:
(a)The Applicant was employed by the Respondent (paras 1-6).
(b)The Respondent terminated the Applicant’s employment in certain circumstances (paras 7-16).
(c)The Respondent had certain duties under the FWA and at common law (paras 17-20).
(d)The Respondent breached its duties under the FWA and at common law (paras 21-27).
(e)The Respondent’s breach of duty caused the Applicant to suffer a workplace injury and consequential loss and damage (paras 28-33).
In support of the interlocutory application, Steritech relied on an affidavit of Mr Glenn James Robertson. I understand that Mr Robertson is employed by Steritech as a General Manager in Queensland and New South Wales. Mr Robertson deposed, in summary:
·Mr Scott was employed by Steritech from 1 April 2003, until 7 August 2018 when Mr Scott’s employment was terminated on the basis of redundancy;
·During this time, Mr Scott held various positions including Plant Operator and Irradiation Supervisor;
·On 9 July 2019 Mr Scott commenced proceedings in the Federal Circuit Court (now Family Court and Federal Circuit Court of Australia Division 2) against Steritech alleging contravention of the general protection provisions in the Fair Work Act in relation to his dismissal (Federal Circuit Court Proceeding);
·On 20 December 2019 Steritech filed a Defence in the Federal Circuit Court Proceeding;
·On 16 January 2020 Mr Scott filed a reply in the Federal Circuit Court Proceeding;
·On 19 May 2020 the parties attended a mediation before a Registrar;
·At the mediation, the parties reached in-principle agreement to resolve the matter in the Federal Circuit Court;
·Mr Robertson understood that, in the days following the mediation, correspondence was exchanged between the parties finalising the terms of a Deed of Settlement and Release;
·A Deed of Settlement and Release was subsequently signed by both parties;
·On 19 June 2020 Steritech made payment to Mr Scott of the settlement sum as agreed in the Deed;
·On 19 June 2020 Mr Scott discontinued the Federal Circuit Court Proceeding;
·Mr Scott commenced the present Federal Court proceeding on 7 July 2022;
·On 28 July 2022 Steritech’s solicitors wrote to the legal representatives of Mr Scott stating that the relief sought by Mr Scott in the present proceeding was subject to the settlement agreement between the parties; and
·On 28 July 2022 Mr Scott’s solicitors wrote to Steritech to the effect that the Deed did not preclude the bringing of this proceeding and that any application for strike out would be resisted.
BEFORE THE FEDERAL CIRCUIT COURT
In his Statement of Claim filed on 8 July 2019 in the Federal Circuit Court, Mr Scott made a claim under the Fair Work Act alleging dismissal in contravention of general protection provisions under that Act. In summary he sought compensation and a pecuniary penalty against Steritech.
The facts pleaded by Mr Scott in his Federal Circuit Court application were as follows:
BACKGROUND
1. The Applicant was employed by the Respondent from on or around 1 April 2013 to 7 August 2019.
2. As at the date on which his employment was terminated by the Respondent, the Applicant had been employed for 15 years and 4 months.
3. The Respondent is in the business of providing industrial irradiation services.
4. Immediately prior to the termination of his employment:
(a) the Applicant's title was Queensland Irradiation Supervisor; and
(b) the Applicant was appointed by the Respondent to be a "Radiation Safety Officer'' (being a position with statutory responsibility under section 35 of the Radiation Safety Act 1999 (QJd) (RS Act).
CHRONOLOGY
1-April 2003
5. On 1 April 2003, the Applicant commenced his employment with the Respondent as a shift plant operator at the Respondent's premises at Narangba in Queensland.
6. On or around l October 2010, the Applicant's position changed to Queensland Irradiation Supervisor.
2-July 2015
7. On or about 2 July 2015, Mr Robertson directed the Applicant to engage in action in improper and/or unlawful action; namely:
(a) sign documents falsely declaring that items had a received an irradiation dosage rate that they hadn't received; and
(b) engage in unsafe or improper radiation procedures; and
(c) delete or alter dosimeter reports.
(the Disputed Duties)
8. The Applicant complained to Mr Robertson that his direction was improper and/or unlawful; that he shouldn't have to perform the Disputed Duties; and the Applicant refused to comply with Mr Robertson's direction (the First Complaint).
9. Shortly after the First Complaint, Mr Robertson gave the Disputed Duties to a coworker, Seth Cooper, and the Applicant was not thereafter required to perform the Disputed Duties - either at all or in the manner directed by Mr Robertson - until in or around April 2018.
28-July 2015 to 3 August 2018
10. Between 28 July 2015 and 3 August 2018, the Applicant had a substantial amount of absence from work on account of illness, all such absences being taken as either paid personal/carer’s leave, or paid annual leave, under the FW Act (owing to the Applicant’s substantial accrual of such forms of leave)
11. Between mid-2015 and mid-2018, the cause of the Applicant's illness was undiagnosed, although the symptoms he experienced included stomach pain. The Applicant underwent numerous treatments and even stomach surgery in an effort to diagnose the cause of his stomach pain.
12. While he was ill and the cause of that illness unknown, the Respondent allowed the Applicant to work modified duties
September/ October 2017
13. In or around September or October 2017, the Applicant attended a work teleconference at which the Respondent's CEO (who is based in Melbourne) announced to all employees in Queensland, New South Wales and Victoria that the Respondent was building a new plant in Melbourne. The CEO stated that no employee would be made redundant as a result of the Respondent's decision to build the new plant.
14. In or around late 2017, the Applicant's doctor certified him as fit to work his normal hours of work and to safely carry out his pre-illness duties.
Early 2018
15. In or around early 2018, the Applicant advised the Respondent that he wanted to resume all of his pre-illness duties in or around April 2018.
April 2018
16. In or around April 2018, Mr Robertson -- having been informed of the Applicant's fitness to resume all of his pre-illness duties, and of Applicant's desire to do so – told the Applicant that he would be required once again to perform the Disputed Duties.
17. Once again, the Applicant complained to Mr Robertson that he considered the Disputed Duties to be improper and/or unlawful, that he shouldn't have to perform the Disputed Duties; and the Applicant refused to comply with Mr Robertson's direction (the Second Complaint).
June 2018
18. In or around June 2018, the Applicant was finally diagnosed as suffering from ischemic colitis, which led to an effective regime of treatment and medications.
7-August 2018
19. At around 9.30am on 7 August 2018, the Applicant (upon returning to work following a period of absence from work on account of illness) was called into a meeting, unannounced, with the Respondent's General Manager, Glenn Robertson, and told that his employment was terminated, effective immediately, on account of the alleged redundancy of his position.
20. During the meeting, Mr Robertson said it was a “forced redundancy because they are saving pennies for their new plant.”
21. Despite the reason given for the Applicant’s dismissal, his role was in fact not made redundant by the Respondent.
22. The Applicant's position of Queensland Irradiation Supervisor was the only role in Queensland, Victoria or New South Wales to have allegedly been made redundant as a result of the Respondent's decision to build a new plant.
7-August 2018 to Present
23. As a result of the unlawful termination of his employment, the Applicant suffered a severe psychiatric illness, which included periods of hospitalisation, and he has been unable to work in any capacity since the date of his dismissal. The Applicant' prognosis is that he will remain wholly incapacitated for work for some time.\
In the Federal Circuit Court Mr Scott claimed as follows:
ADVERSE ACTION
Adverse Action
24.By dismissing the Applicant, the Respondent (as an employer) took "adverse action" against the Applicant (as its employee) for the purposes of section 342(1) of the FW Act (Item 1).
Breach of General Protection (s 340)
25. The Respondent dismissed the Applicant because:
(a)the Applicant exercised and/or threatened to exercise a "workplace right" for the purposes of section 340(l)(a)(ii) and s 341(l)(a) of the FW Act; namely, an entitlement to the benefit of paid personal / carers' leave and/or paid annual leave under the FW Act; and
(b)the Applicant exercised a "workplace right" for the purposes of section 340(1)(a)(ii) and s 341(l)(c)(ii) of the FW Act; namely, the Applicant made a complaint about his employment by reason of the First and/or Second Complaints; and
(c)of an actual or perceived physical disability (relating to the Applicant's colitis); and
(d)the Applicant had been temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
26.By reason of the matters in paragraph 23(a) and (b) above, the Respondent breached section 340(1) of the FW Act.
27. By reason of the matters in paragraph 23(c) above, the Respondent breached s 351(1) of the FW Act.
28.By reason of the matters in paragraph 23(d) above, the Respondent breached s 352 of the FW Act.
DAMAGES
29. As a result of the Respondent's contraventions of s 340(1), 351(1) and/or 352 of the FW Act, the Applicant has suffered past and future economic loss, as well as hurt, humiliation and distress.
The relief sought by Mr Scott in the Federal Circuit Court was as follows:
RELIEF
30. The Applicant seeks the following relief:
(a) an order directing the Respondent to pay a penalty pursuant to section 539 (item 11) and 546( l) of the FW Act;
(b) an order pursuant to section 546(3)(c) of the FW Act that any penalty be paid to the Applicant;
(c) an order pursuant to section 545(2) of the FW Act directing the Respondent to pay $100,000 as damages for hurt, humiliation and distress to the Applicant;
(d) an order pursuant to section 545(2) of the FW Act directing the First and Second Respondents to pay damages for past and future economic loss to the Applicant; and
Particulars
The claim for past and future economic loss will be particularised closer to trial. It will include lost wages as well as out of pocket costs relating to medical and other expenses.
(e) such further or other orders as the Court may deem appropriate.
In his Statement of Claim filed in the Federal Circuit Court in the same proceeding Mr Scott further pleaded, in particular:
Coverage
9. The Applicants employment was covered by:
(a) the Ionising Processing (Irradiation) Award 2002 from 1 April 2003 until the date in 2007 that the Steritech (Narangba) Plant Operators Collective Agreement (the agreement) came into effect pursuant to clause 4 of the agreement;
(b) the agreement from the date that the agreement came into effect on a date in 2007 until and including the 30 September 2010;
(c) the Clerks Private Sector Award 2010 (the award) from 1 October 20 l 0 until 7 August 2018.
10. Pursuant to clause 5 of the agreement because the Applicants employment as plant operator ceased on the 30th of September 2010:
(a) the Applicant ceased to be covered by the agreement on the 30 September 2010;
(b) from the 1st of October 2010 the Applicants employment was covered by the award.
Award Coverage
11. From 1st of October 2010 until 7 August 2018 the Applicants employment was covered by the award because:
(a) the reason pleaded to at paragraph 10(a) and (b) hereof;
(b) the Respondent was not covered by a modem award that made provision for clerical classifications;
(c) the Act did not exclude the Applicant from award coverage;
(d) pursuant to Schedule B of the award the Applicant was a classification B.1.6 employee.
Materially, in his Statement of Claim in the Federal Circuit Court Mr Scott pleaded:
Contravention of section 45 of the Act and clause 8 of the Award
36. The Respondent contravened section 45 of the Act by contravening clause 8.1 of the award because after having made a definitive decision to make the Applicants position redundant the Respondent:
(a) contravened of clause 8.l(b) (ii) of the award because the Respondent did not discuss with the Applicant the significant effect to the Applicant of the definitive decision to make Applicants position redundant;
(b) contravened clause 8.1 (b)(iii) of the award because the Respondent did not discuss with the Applicant measures to avoid or reduce the adverse effects on the Applicant of the Respondents decision to make the Applicants position redundant.
37. The Respondent contravened section 45 of the Act by contravening clause 82 of the award because the Respondent did not give to the Applicant relevant information in writing of:
(a) the Respondents decision to make the Applicants position redundant;
(b) the expected effect to the Applicant of the Respondents decision to make the Applicants position redundant.
38. The Respondent contravened section 45 of the Act by contravening clause 8.4 of the award because the Respondent:
(a) did not promptly consider matters raised by the Applicant;
(b) could not have considered matters raised by the Applicant because of the Respondents contraventions pleaded to paragraphs 36 and 37 hereof
39. The Respondents contravention of section 45 of the Act by its contraventions of clause 8.1, 8.2 and 8.4 of the award caused the Applicant to suffer hurt and distress.
Particulars
(A) by way of written report dated 9 May 2019 Dr Slack, consultant psychiatrist and pyscogeratrician diagnosed the Applicant as having suffered a major depressive episode, severe in intensity (the Applicants injury) and that the Applicants injury was caused by the peremptory termination of the Applicants employment.
(B) by way of written report dated 18 June 2019 Dr Chalk, psychiatrist determined that the Applicant had suffered a major depressive illness and the major depressive illness suffered by the Applicant was caused by the unexpected forced redundancy.
Contravention of section 45 of the Act and clause 13.2 of the Award
40. The Respondent contravened section 45 of the Act by contravening clause 13.2 of the award because the Respondent did not permit the Applicant to have a paid day off for the purposes of seeking alternate employment.
Breach of the implied term
41. The Respondent wrongfully terminated the Applicants employment contract because the Respondent did not give the Applicant 6 months' notice of the Respondents termination Applicants employment contract.
42. The Respondents wrongful termination terms caused the Applicant to suffer:
(a) economic loss; and
(b) hurt and distress.
Particulars
(A) by way of written report dated 9 May 2019 Dr Slack, consultant psychiatrist and pyscogeratrician diagnosed the Applicant as having suffered a major depressive episode, severe in intensity and that it was caused by the peremptory termination of the Applicants employment.
(B) by way of written report dated 18 June 2019 Dr Chalk, psychiatrist determined that the Applicant had suffered a major depressive illness and that it was caused by the unexpected forced redundancy.
Contraventions of Part 3-1 of the Act by the Respondent
43. In contravention of section 340(l)(a)(ii) of the Act, the Respondent dismissed the Applicant from his employment and thereby prejudicially altered the Applicant's position or injured the Applicant in his employment because of the Applicants:
(a) complaints as they are pleaded to at paragraphs 20 to 22 hereof; and or in the alternative
(b) inquiry as it is pleaded to at paragraph 29(b) hereof.
44. In contravention of section 352 of the Act, the Respondent dismissed the Applicant from his employment and thereby prejudicially altered the Applicant's position or injured the Applicant in his employment because the Applicant was temporarily absent from work due to illness as the absences are pleaded to at paragraphs 24 and 25 hereof.
45. In contravention of section 340(2) of the Act, the Respondent dismissed the Applicant from his employment to prevent the Applicant from exercising a workplace, being a workplace right to apply for and be paid compensation pursuant to section 132 of the Workers Compensation and Rehabilitation Act (Qld) 2003.
46. By reason of the facts pleaded in paragraphs 36 to 39 hereof the Respondent contravened section 45 of the Act
…
At para 47 of the Statement of Claim Mr Scott claimed that he had suffered loss and damage because of the Steritech’s alleged contraventions of sections 45, 340(1)(a)(i), 352 and 340(2) of the Fair Work Act.
DEED OF RELEASE
The Federal Circuit Court proceedings were settled by a Deed of Release signed by Mr Scott and Steritech on 21 May 2020. Pursuant to that Deed of Release Steritech paid Mr Scott an amount of $52,500.00. The Deed of Release relevantly provided:
…
Recitals
A The Employee was employed by the Company from 1 April 2003 until 7 August 2018 (the Employment Period).
BThe Employee's employment was terminated on 7 August 2016 for reasons of redundancy (the Termination).
CThe Employee commenced proceedings in the Federal Circuit Court (BRG621/19) alleging a breach of the general protections provisions of the Fair Work Act 2009 (Cth), a claim for an implied period of notice of termination and alleged contraventions of the Fair Work Act 2009 (Cth) relating to alleged contraventions of terms of the Clerks - Private Sector Award 2010 (the Proceedings). The Company denies the allegations.
DWithout any admission of liability, the Employee and the Company have agreed to settle all issues arising out of the Employment Period, the Termination and the Proceedings on the terms set out in this Deed.
This Deed provides
1. Terms of Settlement
(a) The Company will make a payment to the Employee as set out in clause 2 of this Deed.
2. Payment
Without admission of liability and in consideration of the releases and indemnities provided in this Deed:
(a) Within twenty-one (21) calendar days of the Employee's representative delivering, by email, an electronic copy of the Deed executed by the Employee to the Company's legal representatives, the Company will:
(i) make payment of the sum of $52,500 (the Settlement Sum);
(ii) treat the Settlement Sum as an eligible redundancy payment, with tax deducted as applicable;
…
(b)Within two (2) business days of the Settlement Sum receipt into the nominated account, the Applicant will file a Notice of Discontinuance in the Federal Circuit Court in respect of the Proceedings and serve upon the Respondent's legal representatives a sealed copy of the Notice of Discontinuance when it becomes available.
3. Release
(a)The Employee hereby releases and forever discharges the Company, its directors, officers, employees, servants, agents, related bodies corporate, predecessor companies and any of them from all actions, suits, claims, demands, rights, costs, complaints and other liabilities of any nature which the Employee now has or at any time may have, or but for the execution of this Deed, could or might have had against the Company, its directors, officers, servants, agents, related bodies corporate or any of them, whether known, unknown or incapable of being known at the time of execution of this Deed, arising out of or in connection with the:
(i) Employment Period; and
(ii) Termination; and
(iii) Proceedings; and
any other matter whether or not referred to or concerning the same subject matter as that referred to in the Recitals to this Deed and whether arising at common law or in equity or under statute or otherwise as a result of any subsequent changes in that law, including but not limited to any alleged breach of anti-discrimination legislation or anti-bullying legislation, save for any claims made under workers' compensation or superannuation law.
(b)The Company hereby releases and forever discharges the Employee from all actions, suits, claims, demands, rights, costs, complaints and other liabilities of any nature which the Employer now has or at any time may have, or but for the execution of this Deed, could or might have had against the Employee, whether known, unknown or incapable of being known at the time of execution of this Deed, arising out of or in connection with the:
(i) Employment Period; and
(ii) Termination: and
(iii) Proceedings.
…
7. Bar to Proceedings
(a)Save by way of enforcement of this Deed, this Deed operates as an absolute bar to all actions, causes of actions, proceedings, claims, accounts, demands, costs and expenses (including legal costs and expenses) threatened or brought or attempted to be brought by or in the name of the Employee against the Company, its directors, officers, servants, agents, related bodies corporate, or any of them arising out of or in connection with the:
(i) Employment Period; and
(ii) Termination; and
(iii) Proceedings; and
any other matter whether or not referred to or concerning the same subject matter as that referred to in the Recitals to this Deed and whether arising at common law or in equity or under statute, anti-discrimination law, antibullying law or otherwise or as a result of any subsequent change in that law, save for any claims made under workers' compensation or superannuation law.
(b) Save by way of enforcement of this Deed, this Deed operates as an absolute bar to all actions, causes of actions, proceedings, claims, accounts, demand, costs and expenses (including legal costs and expenses) threatened or brought or attempted to be brought by or in the name of the Company against the Employee, arising out of or in connection with the:
(i) Employment Period; and
(ii) Termination: and
(iii) Proceedings; and
any other matter whether or not referred to or concerning the same subject matter as that referred to in the Recitals to this Deed and whether arising at common taw or in equity or under statute, anti-discrimination law, antibullying law or otherwise or as a result of any subsequent change in that law.
…
FEDERAL COURT PROCEEDING
Mr Scott subsequently commenced the present proceedings in the Federal Court of Australia. In his statement of claim Mr Scott pleaded facts referable to his employment by Steritech and medical conditions he suffered. The statement of claim continued:
Termination of the Applicant’s employment
7. In about late 2017, the Respondent’s chief executive officer told its employees (including the Applicant) that no redundancies were being considered (in the context of the Respondent constructing a new facility).
8. In about February 2018, the Respondent commenced a budget review process (the Budget Review) which included consideration of whether the Applicant’s Position should be made redundant.
9. The Applicant was on leave from his employment with the Respondent due to medical conditions throughout February 2018 and March 2018.
10. On about 28 March 2018, the Respondent wrote to the Applicant telling him that it valued him as an employee and that it wanted to determine when he could safely return to full-time working hours and duties.
11. In March or April 2018, the Respondent decided that the Applicant’s Position was or was to be made redundant (the Redundancy).
12. The Redundancy was a matter or decision designed to increase the productivity, efficiency and competitiveness of the Respondent’s business.
13. Between about March and August 2018:
(a) The Respondent had specific concerns about the effects of medication on the Applicant, including on his emotions or state of mind.
Particulars: Glenn Robertson (the Respondent’s Queensland General Manager) and Kym Morrison (the Respondent’s Human Resources Manager) each had concerns about medication affecting the Applicant’s performance and about the Applicant’s emotional state.
(b) The Respondent had specific concerns about how the Applicant would react emotionally to being advised that his employment was being terminated in consequence of the Redundancy.
Particulars: Glenn Robertson (the Respondent’s Queensland General Manager) and Kym Morrison (the Respondent’s Human Resources Manager) were concerned about the Applicant having an excessive or extreme emotional reaction to being advised that his employment was terminated.
14. On 7 August 2018, the Respondent:
(a) Required the Applicant to attend a meeting with his immediate supervisor (the Termination Meeting).
Particulars: Glenn Robertson (the Respondent’s Queensland General Manager) and Seth Hamilton (the Respondent’s Quality Assurance Officer) were present at the Termination Meeting. In the Meeting, Glenn Robertson advised the Applicant that his employment was terminated effective immediately.
(b) During the Termination Meeting, terminated the Applicant’s employment with immediate effect for the stated reason of redundancy.
15. The Respondent did not, at any time before the Termination Meeting:
(a) Advise the Applicant of the purpose of the Termination Meeting.
(b) Give the Applicant an opportunity to bring a support person to the Termination Meeting.
(c) Give the Applicant an opportunity to have a support person available after the Termination Meeting.
16. The Respondent did not at any time before the Termination Meeting:
(a) Notify the Applicant that it was considering whether the Applicant’s Position should be made redundant.
(b) Notify other employees at the Narangba Plant that it was considering whether the Applicant’s Position should be made redundant.
(c) Consult with the Applicant about whether the Applicant’s Position should be made redundant.
(d) Consult with other employees at the Narangba Plant about whether the Applicant’s Position should be made redundant.
(e) Consult with the Applicant about any possible alternative employment if the Applicant’s Position were to be made redundant.
(f) Give the Applicant any explanation or information about what was involved in the process of considering whether the Applicant’s Position should be made redundant.
(g) Provide or make available any support to the Applicant to understand or adjust to the possible Redundancy.
The Respondent’s duties and obligations
17. At at [sic] material times after the commencement of the Fair Work Act 2009 (Cth) (the FWA), the Applicant was a “national system employee” and the Respondent was a “national system employer” within sections 13 and 14 of the FWA respectively.
18. Between (relevantly) February 2018 and August 2018, the Respondent was under an obligation (the FWA Obligation):
(a) To not contravene a term of a “modern award” pursuant to s 45 of the FWA; and
(b) To not contravene a term of an “enterprise agreement” pursuant to s 50 of the FWA.
19. At common law or as an implied term of the Employment Contract, the Respondent owed the Applicant a non-delegable duty (the Duty of Care):
(a) To take all reasonable steps to provide him with a safe place and system of work.
(b) To take all reasonable steps to avoid foreseeable risk of psychiatric harm to the Applicant in the performance of his employment.
20. Between (relevantly) February 2018 and August 2018, the Applicant’s employment with the Respondent was subject to:
(a) A “modern award” within the scope of the FWA, namely the Clerks Private Sector Award 2010 (the Award); or, alternatively
(b) An “enterprise agreement” within the scope of the FWA, namely the Steritech Pty (Narangba) Plant Operators Collective Agreement 2007 (the Enterprise Agreement).
The Respondent’s contravention of the FWA Obligation
21. At all material times, clause 9 of the Enterprise Agreement provided as follows:
The employer and the employees shall establish a consultative mechanism and procedures appropriate to the size, structure and needs of the enterprise.
Matters raised by the employer or employees designed to increase the productivity, efficiency and competitiveness of the business and to enhance the career opportunities and job security of employees, shall proceed through the consultative mechanism.
The employer shall permit a notice board to be erected at the enterprise to facilitate communication with employees.
22. At all material times, clause 8.1 of the Award provided as follows:
8.1 Consultation regarding major workplace change
(a) Employer to notify
(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.
(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.
(b) Employer to discuss change
(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.
(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).
(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.
23. By failing to take the steps outlined in paragraph 16 above:
(a) The Respondent contravened clause 8.1 of the Award and thereby contravened s 45 of the FWA; or, alternatively
(b) The Respondent contravened clause 9 of the Enterprise Agreement and thereby contravened s 50 of the FWA.
24.In the premises of the preceding paragraph, the Respondent breached its FWA Obligation.
The Respondent’s breach of the Duty of Care
25. At all material times prior to the Termination Meeting:
(a) The Respondent knew or ought to have known of the matters pleaded in paragraphs 3, 6, 8, 9, 10, 13, 15, 16, 21, and 22 herein.
(b) In the circumstances, there was a reasonably foreseeable risk that the Applicant might suffer psychiatric harm if the Respondent did not, prior to the Termination Meeting:
(i) Notify the Applicant of the proposed Redundancy; or
(ii)Consult with the Applicant about the proposed Redundancy; or
(iii) Provide the Applicant with reasonable workplace support leading up to the Redundancy decision and leading up to the Termination Meeting.
(c) The risk referred to in the preceding paragraph was not insignificant.
26. A reasonable employer in the Respondent’s position would have taken the following precautions prior to terminating the Applicant’s employment:
(a) Each of the steps outlined in paragraph 15 herein.
(b) Each of the steps outlined in paragraph 16 herein.
27. By failing to take the steps outlined in paragraphs 15 and 16 herein, the Respondent breached its Duty of Care.
The Applicant’s workplace injury
28. Commencing from about 7 August 2018, the Applicant developed a psychiatric injury described as a major depressive disorder (the Injury).
29. The Applicant developed the Injury as a result of:
(a) The Respondent’s breach of the Duty of Care as pleaded herein; or
(b) The Respondent’s breach of the FWA Obligation as pleaded herein.
30. The Applicant would not have suffered the Injury if the Respondent had taken the steps outlined in paragraphs 15 or 16 above.
31. As a result of the Injury, the Applicant:
(a) Suffers and will continue to suffer emotional pain, discomfort, inconvenience and detriment to his enjoyment of the amenities of life.
(b) Has suffered a permanent disability.
(c) Has been and will continue to be obliged to incur the expense of obtaining medical and health care.
(d) Incurred a permanent reduction in his capacity to earn income.
(e) Is at a material disadvantage on the open labour market.
Mr Scott seeks the following relief by way of loss and damage:
32.The Applicant has suffered loss and damage as a result of the Injury, for which he is entitled to:
(a) Compensation of $1,191,193.19 (as particularised below) under s 545 of the FWA in respect of the Respondent’s breach of the FWA Obligation as pleaded herein; or, alternatively
(b) Damages of $1,034,423.19 (as particularised below) in respect of the Respondent’s breach of the Duty of Care as pleaded herein, assessed at common as modified or regulated by the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Queensland Act) and the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) (the Queensland Regulation).
Paragraph 33 of the statement of claim sets out in tabular form the method of assessment of the compensation or damages sought by Mr Scott.
SUBMISSIONS
Steritech submitted, in summary, as follows:
·Clause 3 of the Deed of Release contained a broad release for all employment-related causes of action, with the exception of those under workers compensation law.
·The Deed of Release barred the continuation of the proceeding.
·The present substantive proceeding was an abuse of process as Mr Scott was re-agitating the same claim in two different forums, namely the Federal Circuit Court and this Court.
·The Federal Court had no jurisdiction to hear a common law claim for damages as sought by the present proceedings.
·The statement of claim filed by Mr Scott did not plead any of the factors required by s 237 of the Workers Compensation and Rehabilitation Act 2003 (Qld) (WCR Act), which expressly limits who is entitled to bring a common law claim for damages.
·The signature difference between the claims was that the figure sought by Mr Scott had risen from $400,000 to $1.2 million.
·Mr Scott had discontinued his Federal Circuit Court proceeding.
·Re-litigating the same dispute two years later was an abuse of process.
·The Court should order summary judgment under r 26.01(1)(a) or (d) of the Federal Court Rules 2011 (Cth) and/or section 31A of the Federal Court of Australia Act1976 (Cth) (Federal Court Act). There was no reasonable prospect of Mr Scott successfully prosecuting this part of the proceeding as he was barred by the deed of release: Mulhern v Pearce(No. 2) [2014] FCA 805.
Materially, s 237 of the WCR Act to which Steritech referred provides:
237 GENERAL LIMITATION ON PERSONS ENTITLED TO SEEK DAMAGES
(1) The following are the only persons entitled to seek damages for an injury sustained by a worker—
(a) the worker, if the worker—
(i) has received a notice of assessment from the insurer for the injury; or
(ii) has not received a notice of assessment for the injury, but—
(A) has received a notice of assessment for any injury resulting from the same event (the "assessed injury" ); and
(B) for the assessed injury, the worker has a DPI of 20% or more or, under section 239, has elected to seek damages; or
(iii) has a terminal condition;
(b) a dependant of the deceased worker, if the injury results in the worker’s death and—
(i) compensation for the worker’s death has been paid to, or for the benefit of, the dependant under chapter 3, part 11; or
(ii) a certificate has been issued by the insurer to the dependant under section 132B.
(2) The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter and the provisions of chapter 4A, part 5.
Note—
See, for example, section 232V (3) which provides that a worker required under section 232V to elect to seek treatment, care and support damages for an injury who does not make the election is not entitled to seek treatment, care and support damages for the injury.
(3) If a worker—
(a) is required under section 239 to make an election to seek damages for an injury; and
(b) has accepted an offer of payment of lump sum compensation under chapter 3, part 10, division 3 for the injury;
the worker is not entitled to seek damages.
(4) However, subsection (3) does not prevent a worker from seeking damages under section 266.
(5) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.
Mr Scott submitted, in summary, as follows:
·Steritech had failed to establish any relevant pleading deficiency to warrant the strike out application;
·The circumstances made summary dismissal inappropriate;
·Steritech’s strike out application should fail because the Deed of Release was no bar to a Fair Work Act claim;
·Even if the Deed of Release was a bar, the Court did not lose jurisdiction to hear the common law claim;
·Although the Fair Work Act and the common law claim depended on the same substratum of facts, summary dismissal of the Fair Work Act claim would not obviate the need for a trial upon those facts in relation to the common law claim.
·Extrinsic evidence was needed to construe the meaning of “workers’ compensation…law” to determine the circumstances surrounding the parties and the understanding between the parties.
·The meaning of “workers’ compensation… law” is ambiguous. The Court was required to consider extrinsic evidence.
·There was no bar to Mr Scott seeking common law damages for the injury he alleged was caused by Steritech.
CONSIDERATION
It is not in dispute that Mr Scott originally commenced litigation against Steritech in the Federal Circuit Court claiming failure of Steritech to comply with a consultation clause under the Clerks - Private Sector Award 2010 (Award), that Mr Scott had originally claimed that Steritech had breached s 45 of the Fair Work Act and had engaged in adverse action against him within the meaning of s 342(1) of the Fair Work Act, and that the parties had settled the proceedings in the Federal Circuit Court for $52,500.00. Comparison of Mr Scott’s application in the Federal Circuit Court with his statement of claim in this Court reveals that the facts pleaded in both cases are, essentially, identical, being referable to the circumstances of the termination of Mr Scott’s employment by way of redundancy. Material differences are:
·Although Mr Scott’s claims in both the Federal Circuit Court proceeding and the present Federal Court proceeding relied on the consultation process in clause 8 of the Award, in the Federal Court Statement of Claim he also relies in the alternative on the Steritech Pty (Narangba) Plant Operators Collective Agreement 2007;
·In the Federal Court proceeding Mr Scott claims breach by Steritech of its Fair Work Act obligations to him, as well as breach by Steritech of its duty of care to him referable to compliance by Steritech with obligations under the Award, consultation about the proposed redundancy and providing him with support. In the Federal Circuit Court Mr Scott did not plead breach of a duty of care by Steritech – rather while he claimed contravention by Steritech of s 45 of the Fair Work Act, he also claimed alleged breach of an implied term of Mr Scott’s contract by failure to give him six months’ notice and contravention of Part 3-1 of the Fair Work Act by Steritech (which was not the subject of his claim in the Federal Court).
By cl 3(a) of the Deed of Release Mr Scott released and forever discharged Steritech and others from, inter alia, all actions, suits, claims, demands, rights, costs, complaints and other liabilities of any nature he had, or at or at any time may have, or but for the execution of the Deed, could or might have had against Steritech and others, whether known, unknown or incapable of being known at the time of execution of the Deed, arising out of or in connection with the employment period, termination and proceedings and any other matter. However, there was a specific exclusion for:
any claims made under workers' compensation or superannuation law.
Clause 7(a) of the Deed of Release mirrored cl 3(a) by providing that the Deed of Release operated as “an absolute bar” to further proceedings, again save for any claims made under workers' compensation or superannuation law.
The release and bar in the Deed of Release are plainly expressed in very broad and comprehensive language, and (save for the defined exception) unambiguously prohibit claims arising out of or in connection with Mr Scott’s employment period, termination of employment, proceedings and any other matter, whether known or unknown or incapable of being known at that time. In Laverick v Westpac Banking Corporation [2020] QSC 333 Bowskill J (as her Honour then was) observed in relation to a consent order agreed by the parties:
20.The wording of order 19, reflecting as it does the agreement of the parties to the consent orders, is to be construed in the same manner as a written agreement: that is, construed objectively, having regard to what a reasonable person in the position of the parties to it would have understood it to mean, having regard to the language used, the surrounding circumstances known to the parties at the time of the agreement and its purpose.
In Sarina v Fairfax Media Publications Pty Ltd [2018] FCAFC 190; (2018) 365 ALR 15 the Full Court considered a deed of release executed by relevant parties, where the respondent relied on the deed as a complete defence to a claim for defamation brought by the applicant. The primary Judge in that case had found that relevant clauses had a very wide operation, and, as the respondent was entitled to the benefit of that release, the clauses extended to release the respondent from any liability in respect of particular published articles. Relevantly the Full Court said:
20.Where, in a deed (or agreement) a clause provided one party with a release in wide or general words, the common law principle of construction restricted the otherwise wide or general operation of those words by construing the release clause as operating upon only the subject or occasion to which the deed (or agreement) read as a whole referred: Grant 91 CLR at 123-124 per Dixon CJ, Fullagar, Kitto and Taylor JJ. Thus, where, as often occurs, a deed recited that the parties have had a particular dispute, but the clause creating the release did not expressly confine its operation to the dispute mentioned in the recitals, the principles of construction at common law read down the wide words of the release to apply only to the dispute in the recitals. Indeed, Dixon CJ, Fullagar, Kitto and Taylor JJ explained (Grant 91 CLR at 124 and 131) that the common law principle was that a written instrument expressed in general terms (be it a deed or statute) had to be construed having regard to the circumstances to which the instrument must have intended to apply. This in substance accords with the modern principles applicable to the construction of contracts and deeds. As Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40] (and see also Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45 at 52-53 [10] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ):
This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) [2004] HCA 35; 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 461-462 [22]. (emphasis added)
21.However, where one of the parties to a release sought to rely upon its wide and general words, equity considered whether it would be unconscientious for that party to enforce such a meaning by examining each party’s actual knowledge and intention at the time of entry into the release: Grant 91 CLR at 124-125. In other words, as Dixon CJ, Fullagar, Kitto and Taylor JJ held (at 129-130), equity will restrain a party seeking to enforce a wide or general release where it would be unconscientious for that party to do so in all of the circumstances. In such a case, the court will examine the knowledge and intention of both releasor and releasee as to the subject matter on which the release would operate.
Given the breadth of the release and discharge of Steritech by Mr Scott in the Deed of Release, and the unambiguity of the language used in that Deed, I am satisfied, to the extent that Mr Scott now seeks to prosecute a claim in the Federal Court of Australia referable to any rights he may have had under the Fair Work Act arising out of or in connection with his employment period, or the termination of his employment, such claim is barred by the Deed of Release. That Mr Scott now seeks to prosecute different Fair Work rights to those he litigated in the Federal Circuit Court is irrelevant – the Deed of Release applies.
Steritech contends that Mr Scott’s application is an abuse of process. The Court may order that a proceeding be dismissed as an abuse of process pursuant to r 26.01(1)(d) of the Federal Court Rules, or alternatively because the applicant has no reasonable prospect of successfully prosecuting it (s 31A of the Federal Court Act and r 26.01(1)(a) of the Federal Court Rules).The arguments put to me in this respect primarily concerned the question whether the present Federal Court action was an abuse of process within the meaning of r 26.01(1)(d).
The onus of establishing that a claim brought in later proceedings constitutes abuse of process of the Court is on the party alleging abuse, and is a heavy one: UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [67], [136].
Having said that, as a general proposition re-litigation of finalised proceedings constitutes an abuse of the Court’s process. In Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 French CJ, Bell, Gageler and Keane JJ observed at [25] to [26]:
25.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.
26.Accordingly, it has been recognised that making a claim or raising an issue which has been 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 when 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.
(emphasis added)
Similarly in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [33] and [34] French CJ relevantly observed:
33.… Proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.
34.… The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter…
Subsequently Dowsett J in Tyne (Trustee) v UBS AG (No 2) (2015) 250 FCR 341; [2017] FCAFC 5 observed:
1.In particular, I note the following propositions:
•abuse of process may arise 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;
•a court has inherent power to prevent misuse of its procedures in a way which, although not inconsistent with the literal application of its procedural rules, would nonetheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute amongst right-thinking people; and
•making a claim or raising an issue which was made, or raised and determined in earlier proceedings, or which ought reasonably to have been so raised for determination in those earlier proceedings, may constitute an abuse of process, even where the party seeking to make the claim or to raise the issue in the later proceedings was neither a party to the earlier proceedings, nor the privy of a party.
In Tyne the claim sought to be prosecuted by the first appellant (as trustee of a trust) in the Federal Court was substantially the same as that raised by the trust against the same respondent in the New South Wales Supreme Court, to which proceeding the first appellant had also been a party. The Federal Court found that the relief sought by the appellant arose out of the same factual matrix as did the Supreme Court claim. The Supreme Court proceedings were however unconditionally discontinued prior to final resolution.
In respect of previously discontinued proceedings, Justice Dowsett observed in Tyne:
DISCONTINUANCE OF PROCEEDINGS
13.An applicant in legal proceedings should not expect that he or she may, as a general rule, discontinue, and then recommence proceedings, without any significant risk that such conduct will be characterized as an abuse of process. Whilst a person, who has previously discontinued a claim, may not be barred from seeking to pursue that claim in subsequent proceedings, it does not follow that such conduct is desirable, at least where there is no reasonable explanation for it. In considering whether conduct amounts to an abuse of process, the focus must be on the identification of manifest unfairness to the respondent, and/or upon any likelihood that the administration of justice will be brought into disrepute amongst right-thinking people. Where either of these effects is demonstrated, the conduct may be an abuse of process, even if a reasonable explanation is proffered. In principle, an explanation should only assist if it leads to the conclusion that neither likely effect has been proven.
His Honour later continued:
BRINGING THE ADMINISTRATION OF JUSTICE INTO DISREPUTE
15.In considering whether conduct is likely to bring the administration of justice into disrepute, the Court will bring to the task its own experience as to the effect upon the right-thinking person of particular conduct in the course of legal proceedings. Without wishing to be prescriptive or exhaustive, I suggest that the right-thinking person would know that:
•litigation is expensive, for the parties and for the public purse;
•to engage in litigation is a serious business, causing stress and inconvenience, as well as cost;
•there are delays in the legal system, and time spent on one case cannot be spent on other cases; and
•a democratic society depends heavily upon the existence of a fair, efficient, effective and economical process for resolving disputes.
16. Such a person would expect that:
•a party would only resort to the courts if he or she genuinely believed that he or she had a good case and intended to prosecute it to resolution, by judgment or agreement;
•a party who has elected to go to court concerning a matter, would seek to resolve the whole dispute, not merely an aspect of it; and
•where two or more persons claim to have suffered loss as the result of the same conduct, and those claimants are closely associated, personally or in business, they would generally seek to resolve their claims in the same proceedings, rather than in separate proceedings.
17.The right-thinking person would be aware that some or all of these considerations might not apply in a particular case, given the circumstances of that case. However, in general, where previous proceedings have been discontinued, and similar proceedings subsequently commenced, the right-thinking person would infer that there had been a loss of time, an increase in costs, some degree of repetition of process and undue vexation to the other party. Such a person would likely perceive that if the administration of justice allows such conduct, without any explanation, it is inefficient, careless about the incurrence of cost by the parties, and profligate in the application of public moneys.
Justice Dowsett was in dissent in the Full Court in Tyne, however on appeal to the High Court his Honour’s conclusion was upheld. In UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 Kiefel CJ, Bell and Keane JJ observed:
38.The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute. These wider interests are reflected in s 37M(2) of the FCA. As the joint reasons in Aon Risk Services Australia Ltd v Australian National University explain, the "just resolution" of a dispute is to be understood in light of the purposes and objectives of provisions such as s 37M of the FCA. Integral to a "just resolution" is the minimisation of delay and expense. These considerations inform the rejection in Aon of the claimed "right" of a party to amend its pleading at a late stage in the litigation in order to raise an arguable claim. The point is made that a party has a right to bring proceedings but that choices are made respecting what claims are made and how they are framed. Their Honours speak of the just resolution of the dispute in terms of the parties having a sufficient opportunity to identify the issues that they seek to agitat. The respondent's argument in Aon, that the proposed amendment to raise the fresh claim was a necessary amendment to avoid multiple actions, did not avail. As their Honours observe, if reasonable diligence would have led to the bringing of the claim in the existing proceedings, any further proceeding might be met by a stay on Anshun grounds.
Their Honours later continued:
59.For the Federal Court to lend its procedures to the staged conduct of what is factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation, as Dowsett J found, is likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys. The primary judge was right to permanently stay the proceedings as an abuse of the processes of the Federal Court.
Comparison of the proceedings brought by Mr Scott in the Federal Circuit Court and the Federal Court of Australia reveal that both proceedings involved the same factual allegations, brought by the same applicant against the same respondent. Further there is plainly overlap between the two proceedings referable to the provisions of the Fair Work Act on which Mr Scott relied, in particular the relief sought by Mr Scott in both cases pursuant to ss 45 (relating to the contravention of the relevant award) and 545 of the Fair Work Act (although in the Federal Circuit proceedings the compensation sought under s 545 was $414,544.00, whereas in the Federal Court proceedings the compensation sought under s 545 was $1,191,193.19).
Given the agreement of Mr Scott and Steritech to the broad terms of the Deed of Release I am satisfied that Mr Scott is endeavouring to re-litigate his earlier, settled claim originally brought in the Federal Circuit Court under the Fair Work Act, and that it is an abuse of the process of the Federal Court for Mr Scott to bring in this Court proceedings which are barred by that Deed.
However, there remains the issue of a “claim made under workers’ compensation…law” by Mr Scott. The parties are at odds as to the meaning of that phrase for the purposes of the Deed of Release and the present interlocutory proceeding.
I have had regard to the submissions of the parties both oral and written in this respect. The starting point for this analysis is that Mr Scott was employed by Steritech in Queensland. A “claim made under workers’ compensation… law” made by him because of an injury suffered by him in the course of his employment with Steritech in Queensland can only be a reference to a potential claim for damages, referable to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act). As the long title of the Act states, the WCR Act is to establish a workers’ compensation scheme for Queensland, and for other purposes. The WCR Act creates a scheme regulating claims by an injured employee for either damages or compensation even if, as Counsel for Mr Scott submitted, the WCR Act does not itself create such an entitlement.
There is no suggestion that Commonwealth workers’ compensation legislation (in particular the Safety, Rehabilitation and Compensation Act 1988 (Cth)) is relevant to the circumstances of this case.
I do not accept the submission of Mr Scott that a “claim made under workers’ compensation… law” is ambiguous such that it requires extrinsic evidence to construe. As is clear from such decisions as Zoiti-Licastro v Australian Taxation Office [2006] 154 IR 1 (a decision of the Australian Industrial Relations Commission over which Giudice J presided), settlement terms for employment claims routinely exclude the possibility of future claims for damages or compensation for personal injuries to be made under workers’ compensation legislation. In Zoiti- Licastro for example claims under the Safety, Rehabilitation and Compensation Act 1988 (Cth) were excluded from a settlement.
I further note that the WCR Act specifically provides in s 110(2) that an agreement made by the worker or the person purporting to relinquish an entitlement to compensation for an injury sustained by the worker or the person is of no force or effect. This inability to contract out of the provisions of the WCR Act provides an explanation why a right to bring such a claim is preserved in settlements of employee claims, and was preserved by the Deed of Release in this case, notwithstanding that in the present proceeding Mr Scott seeks damages rather than compensation. Indeed, no other explanation is apparent for the saving of claims by Mr Scott “under workers’ compensation… law” in the Deed of Release, in the context of an otherwise broad ranging and comprehensive release of Steritech by Mr Scott.
Mr Scott accepted that an application for compensation would be made to, decided by, and paid by the insurer (in this case, WorkCover Queensland) rather than Steritech, and submitted that it made little sense to read the Deed of Release as meaning that the Mr Scott was releasing Steritech from all claims except one made under the WCR Act when Mr Scott could never have had such a claim against Steritech. In my view, while the insurer is – as Mr Scott conceded – a proper respondent to a claim under the WCR Act, I see nothing remarkable about a Deed of Release, as a matter of drafting practice and prudence, saving broad statutory possibilities for any future claims for damages referable to the WCR Act which would name the employer as a party. No submissions were made by either party about the manner in which a claim under the WCR Act would be framed by an injured employee, however I note for example s 275 of the WCR Act provides that before starting a proceeding in a court for damages, a claimant must give notice of the claim to the insurer and the employer, and to that extent the employer would have a role in the litigation.
Again, as was explained in Zoiti-Licastro, terms saving claims under workers’ compensation law are routine in settlement agreements.
It follows that to the extent that Mr Scott’s claim for damages under “a workers’ compensation…law” is on foot, there are two serious issues arising.
First, as Steritech submitted, s 237 of the WCR Act provides:
(1)The following are the only persons entitled to seek damages for an injury sustained by a worker—
(a) the worker, if the worker—
(i)has received a notice of assessment from the insurer for the injury; or
(ii) has not received a notice of assessment for the injury, but—
(A)has received a notice of assessment for any injury resulting from the same event (the "assessed injury"); and
(B) for the assessed injury, the worker has a DPI of 20% or more or, under section 239, has elected to seek damages; or
(iii) has a terminal condition;
…
(5)To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.
(emphasis added)
There is no material before the Court evincing that Mr Scott is a person who satisfies the requirements of s 237(1) of the WCR Act. To that extent any claim by him for damages under the WCR Act is invalid, as is clear from both ss 237(1) and 237(5).
Second, s 19(1) of the Federal Court of Australia Act 1976 (Cth) provides that the Federal Court has such original jurisdiction as is vested in it by laws made by the Parliament. There is no jurisdiction vested in the Federal Court to determine claims for damages for common law negligence, including claims for damages referable to employment otherwise regulated by State law such as the WCR Act. Mr Scott relied on the decision of the Full Court in Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156, and submitted that even if the Fair Work Act claim were to be dismissed, the Federal Court’s jurisdiction to determine the matter already existed such that its jurisdiction to determine the common law claim aspect would remain.
In Rana the Full Court relevantly observed:
21.Generally, non-colourable assertion of a federal issue is enough to attract federal jurisdiction: Felton 124 CLR at 374 per Barwick CJ; Moorgate 145 CLR at 476; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation [1987] FCA 686; 18 FCR 212 at 219; Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369 at 389-391 per Dixon J. Upon the existence of federal jurisdiction, the matter remains within federal jurisdiction regardless of how the federal issue or issues within it are ultimately resolved: Moorgate 145 CLR at 476. It remains federal even if the federal claim is struck out: Unilan Holdings Pty Ltd v Kerin [1993] FCA 605; 44 FCR 481 at 481-482. Nor does dismissal of the federal claim mean that a court exercising federal jurisdiction somehow loses jurisdiction over the balance of the matter: Burgundy Royale 18 FCR at 219; Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; 104 FCR 564 at 597 [85] per French J. … The position is summarised in Macteldir Pty Ltd v Dimovski [2005] FCA 1528; 226 ALR 773 at 784 [36] as follows:
It is a fundamental tenet of federal jurisdiction that once a federal claim is made, even a bad one, and even one that is abandoned, or struck out, the whole matter in which that claim is made is, and remains, federal jurisdiction ...
Their Honours continued however:
22.The exception to this principle is where the federal claim that is made is “colourable” in the sense that it was “made for the improper purpose of fabricating jurisdiction” such that it was not made bona fide. In such a case, federal jurisdiction is not attracted: Burgundy Royale 18 FCR at 219.
I further note the comment of the High Court in Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 at [36] that assertion of a claim or defence will not give rise to a matter within the description in s 76(i) or s 76(ii) of the Constitution (Cth) if the claim or defence is "unarguable".
In Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 the Full Court said at 219:
It is true that in answering questions 1 and 2 in the negative, we have determined preliminary points of law in the claims under the Act brought against the second and third respondents; and that, in consequence, there will be no further trial of those issues. But it does not follow that the Court ever lacked jurisdiction to deal with such claims. Nor does it follow that the Court now loses its jurisdiction to deal with the attached common law claims: see Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 469, 472, 477; Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (1987) ATPR 40-795; 75 ALR 271, and Dorotea Pty Ltd v Vancleve Pty Ltd (1987) ATPR 40-807; 75 ALR 629. In principle, the position is no different than it would have been if the claims under the Act had proceeded to trial and had been dismissed on the merits. In that situation, it could not seriously be suggested that the dismissal of the claims under the Act had the effect of depriving the Court of jurisdiction to deal with any attached non-federal claim.
The position may have been different if the claims under the Act had been “colourable” in the sense that they were made for the improper purpose of “fabricating” jurisdiction: see P H Lane, Lane's Commentary on the Australian Constitution (1986), pp 367-368 and the cases there cited. There is no room for such a suggestion here. The applicants' case that the second and third respondents were bound by the Act cannot be said to be unarguable; and we think it was pursued bona fide: cf R v Cook; Ex parte Twigg (1980) 147 CLR 15 per Gibbs J at 26.
(emphasis added)
In this proceeding I am satisfied that Mr Scott’s claims under the Fair Work Act were plainly a re-litigation of earlier settled proceeding, and were barred by the Deed of Release. As Steritech has pointed out in submissions, no explanation for that re-litigation in the Federal Court has been given by Mr Scott. I consider that his claim for damages under “workers’ compensation… law”, in respect of which the Federal Court would not otherwise have jurisdiction, were “colourable” as explained by the Full Court in Burgundy, such that this Court does not have jurisdiction to hear it.
COSTS
By his originating application Mr Scott sought remedies under the Fair Work Act. As a general proposition, s 570 of the Fair Work Act limits recovery of costs in relation to matters arising under that Act to circumstances where the Court is satisfied, inter alia, that the party instituting the proceedings did so vexatiously or without reasonable cause (s 570(2)(a)).
In this case, both parties sought costs in the event that they were successful. Section 570 of the Fair Work Act was not the subject of submissions by either party.
In the circumstances I am satisfied that costs should follow the event. To the extent that s 570 is enlivened in this proceeding, in circumstances where I am satisfied that the present proceeding is an abuse of process by the applicant or such that the Court lacks jurisdiction, I am satisfied that Mr Scott instituted the proceeding without reasonable cause within the meaning of s 570(2)(a) of the Fair Work Act and that the Court should order costs against him in favour of Steritech: see Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411.
CONCLUSION
Steritech has submitted that Mr Scott’s statement of claim should be struck out under r 16.21(1)(f) and the proceeding summarily dismissed under r 26.01(1)(d) of the Federal Court Rules, interpreted and applied in the context of s 37M of the Federal Court Act. In circumstances where I am satisfied that the present proceeding is an abuse of process because it re-litigates settled claims, or is such that the Court lacks jurisdiction, an order should be made in the terms sought by Steritech.
Costs follow the event.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. Associate:
Dated: 14 November 2023
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