Scott v Steritech Pty Ltd

Case [2023] FCA 1401

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:

  1. Before the Court is an interlocutory application filed by the respondent in the substantive proceeding, Steritech Pty Ltd (Steritech)…

Continue reading Scott v Steritech Pty Ltd

Sign in free to access the full text

Details
AGLC
Scott v Steritech Pty Ltd [2023] FCA 1401
Case
[2023] FCA 1401
Decision Date

CaseChat Overview and Summary

Steritech Pty Ltd has applied to strike out Mr Scott's Statement of Claim and summarily dismiss his proceeding. The parties had earlier engaged in proceedings in the Federal Circuit Court, which were settled by a Deed of Release, which barred further proceedings save for claims under workers' compensation or superannuation law. Mr Scott has now brought fresh proceedings in the Federal Court seeking damages and compensation for personal injuries. The Federal Court must determine whether the Deed of Release bars Mr Scott's Fair Work Act proceedings, whether the Federal Court has jurisdiction to hear his common law claim, and what the proper order as to costs should be.

The court must first consider whether the Federal Court proceedings are an abuse of process, given the common substratum of facts with the earlier Federal Circuit Court proceedings. The court found that the Federal Court proceedings are an abuse of process because they re-litigate settled claims. The court also found that the Federal Court lacks jurisdiction to hear Mr Scott's common law claim because it is barred by the Deed of Release. The court further found that the meaning of "workers’ compensation…law" is ambiguous and requires extrinsic evidence to determine the circumstances surrounding the parties and the understanding between the parties. The court held that there is no bar to Mr Scott seeking common law damages for the injury he alleges was caused by Steritech.

The court ordered that Mr Scott's Statement of Claim be struck out and the proceeding be dismissed. The court also ordered that Mr Scott pay the costs of Steritech Pty Ltd, to be taxed if not otherwise agreed. The court held that costs should follow the event and that, to the extent that section 570 of the Fair Work Act is enlivened in this proceeding, Mr Scott instituted the proceeding without reasonable cause within the meaning of section 570(2)(a) of the Fair Work Act. The court ordered costs against Mr Scott in favour of Steritech.

Orders

Orders of the court

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.

Background

Background to the litigation

The facts pleaded by Mr Scott in his Federal Circuit Court application were as follows:BACKGROUND1. 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).CHRONOLOGY1-April 20035. 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 20157. 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 201810. 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 dutiesSeptember/ October 201713. 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 201815. 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 201816. 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 201818. 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 201819. 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 Present23. 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.\

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.