SOS Nursing & Home Care Service Pty Ltd v Smith

The applicant, SOS Nursing & Home Care Service Pty Ltd, sought a declaration that it was not obliged to pay its casual staff for time spent travelling between visits to provide services during the course of a day. The matter was before the Federal Court of Australia, and the NSW Nurses’ Association intervened as a party. The applicant had previously lost a case in the Federal Magistrates Court which found it was legally bound to pay its casual employees for travelling time at ordinary rates of pay. The applicant commenced the present proceedings in an attempt to overcome the decision of the Federal Magistrates Court. The court held that the applicant was estopped from seeking the declaration it desired. The same question had been decided by the Federal Magistrates Court, which was a competent court with final jurisdiction. The parties and the matter in issue were the same. The applicant had also failed to pursue an appeal against the decision of the Federal Magistrates Court. The court also found that the proceedings represented an abuse of process as the applicant was attempting to litigate the same issue anew. The proceedings were dismissed and the applicant ordered to pay the costs of the NSW Nurses’ Association.