Sullivan v Allstaff Australia Sydney Pty Ltd
[2024] FedCFamC2G 665
•24 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sullivan v Allstaff Australia Sydney Pty Ltd [2024] FedCFamC2G 665
File number(s): SYG 617 of 2024
SYG 619 of 2024
SYG 647 of 2024Judgment of: JUDGE MANOUSARIDIS Date of judgment: 24 July 2024 Catchwords: INDUSTRIAL LAW – Practice and procedure – application for summary dismissal of claims on the ground that the applicants brought the same claims in the Local Court of New South Wales each of which by consent was permanently stayed – order for summary dismissal made. Legislation: Fair Work Act 2009 (Cth) ss 44, 113(1), 545, 547
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13
Cases cited: Chamberlain v Deputy Commissioner of Taxation (1987)
Isaacs v The Ocean Accident and Guarantee Corporation (1958) 75 WN (NSW) 48
Jackson v Goldsmith (1950) 81 CLR 446
Kinch v Walcott [1929] A.C. 482
Letang v Cooper [1964] EWCA Civ 5
Port of Melbourne v Anshun Pty Ltd (1981) 147 CLR 589
Division: Fair Work Number of paragraphs: 23 Date of hearing: 18 July 2024 Place: Sydney Solicitor for the Applicants: Mr S Howe of United Workers Union Counsel for the Respondent: Mr I Latham Solicitor for the Respondent: Mark Diamond & Associates Solicitors ORDERS
SYG 617 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAMES SULLIVAN
Applicant
AND: ALLSTAFF AUSTRALIA SYDNEY PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
24 JULY 2024
THE COURT ORDERS THAT:
1.Pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the proceeding is dismissed.
2.The question of costs is reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
ORDERS
SYG 619 of 2024 BETWEEN: RICKY WILSON
Applicant
AND: ALLSTAFF AUSTRALIA SYDNEY PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDS
DATE OF ORDER:
24 JULY 2024
THE COURT ORDERS THAT:
1.Pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the proceeding is dismissed.
2.The question of costs is reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
ORDERS
SYG 647 of 2024 BETWEEN: NOEL NICHOLLS
Applicant
AND: ALLSTAFF AUSTRALIA SYDNEY PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
24 JULY 2024
THE COURT ORDERS THAT:
1.Pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the proceeding is dismissed.
2.The question of costs is reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
Mr Sullivan, Mr Wilson, and Mr Nicholls (collectively applicants) commenced separate proceedings against their former employer (Allstaff) in which each claims that Allstaff failed to comply with s 113(1) of the Fair Work Act 2009 (Cth) (FW Act), being one of the National Employment Standards defined in s 61(3) of the FW Act and, for that reason, Allstaff contravened s 44 of the FW Act.[1]
[1] The applicants have elected that their claims be dealt with in accordance with this Court’s small claims procedures.
Subsection 113(1) of the FW Act provides that, if there “are applicable award-derived long service leave terms . . . in relation to an employee, the employee is entitled to long service leave in accordance with those terms”. Each of the applicants claims his employment would have been covered by the Storeman and Packers, General (State) Award (Award), an award that was made by the New South Wales Industrial Relations Commission, and that the Award contained terms for long service leave which “are applicable award-derived long service terms” within the meaning of s 113(1) of the FW Act.
Allstaff now applies in each proceeding for an order under r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) that the proceeding be dismissed on the ground that each of the applicants made an identical claim in proceedings each had commenced in the Local Court of New South Wales (Local Court), but in each proceeding the Local Court ordered that the applicants’ claims be permanently stayed. Allstaff contends that, in the circumstances in which each stay was ordered, and given the terms of each stay order, each of the applicants is estopped, under the principles of res judicata and issue estoppel, from litigating in this Court the claims he made in the Local Court.
BACKGROUND
Mr Nicholls
On 20 July 2021 Mr Nicholls filed an application in the Local Court against “Tanidan Pty Ltd T/A Allstaff Australia” seeking an order pursuant to s 545 and s 547 of the FW Act that Allstaff pay him $6,551.34.[2] In the particulars to his claim, Mr Nicholls referred to s 113 of the FW Act; and he claimed he would have been covered by the Award, the Award contained terms relating to long service leave, and Allstaff had failed to comply with those terms. On 26 August 2021 the Local Court made orders by consent requiring Allstaff to file a defence by 23 September 2021, Mr Nicholls to file his affidavits by 15 October 2021, and Allstaff to file its affidavits by 15 November 2021. The Local Court also ordered that Mr Nicholls’ case be heard after 1 December 2021, together with Mr Wilson’s case (to which I refer later).
[2] By an order the Local Court made later in the proceeding the name of the defendant was amended to identify Allstaff as the correct employer.
Allstaff filed its defence on 1 October 2023 in which it:
(a)opposed the matter being heard as a small claim;
(b)said it could not understand Mr Nicholls’ claim because it lacked particularity and, for that reason, Mr Nicholls should be required to file a particularised statement of claim;
(c)denied Allstaff owed Mr Nicholls any long service leave that derived from the Award; and
(d)said that, if there were any obligation to pay long service leave, Mr Nicholls received a casual loading in lieu of paid leave, and Allstaff is entitled to offset the casual loading it paid to Mr Nicholls against any amount of long service leave it might otherwise be liable to pay Mr Nicholls.
On 11 November 2021 Mr Nicholls filed a notice of motion in which he sought, among other things, a “permanent stay of proceedings”. He did so on the following grounds:
The Applicant seeks a stay of proceedings as it has become apparent that the proceeding will be dealt with more efficiently via an application to the New South Wales Industrial Relations Commission for the Commission to deal with the matter as an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996.
Proceedings 20211214285 and 20211222079 were filed concurrently with the current proceedings and relate to the same issue of failure to pay accrued long service leave by the Respondent.
Following discussions with the Respondent, it became apparent that the issues raised in these proceedings are likely to affect a wider cohort than the three individuals named in the related proceedings.
The issues raised in these proceedings would be dealt with more efficiently as an industrial dispute in the New South Wales Industrial Relations Commission because the matter can be arbitrated as a general dispute, rather than an individual claim.
Therefore, the Applicant seeks a permanent stay of proceedings in order to allow his representative, the United Workers Union, to raise the issue of nonpayment of long service leave for casuals as a dispute within the New South Wales Industrial Relations Commission.
The notice of motion further stated that two other proceedings, being proceedings Mr Wilson and Mr Sullivan commenced in the Local Court, “were filed concurrently with the current processing and relate to the issue of failure to pay accrued long service leave by” Allstaff.
On 6 December 2021 the Local Court made the following order:
Proceedings are permanently stayed. (not opposed)
Mr Wilson and Mr Sullivan
Mr Wilson and Mr Sullivan also filed applications in the Local Court in which they each sought an order pursuant to s 545 and s 547 of the FW Act that Allstaff pay accrued long service leave on the basis that they would have been covered by the Award; the Award contained terms relating to long service leave; and Allstaff had failed to comply with those terms. In each of their applications Mr Wilson and Mr Sullivan referred to s 113 of the FW Act.
The course of each of the proceedings Mr Wilson and Mr Sullivan commenced in the Local Court followed a similar path to the proceeding Mr Nicholls had commenced; each of Mr Wilson and Mr Sullivan filed a notice of motion on 11 November 2021 seeking the same orders on the same grounds as the notice of motion Mr Nicholls filed on 11 November 2021 in his proceeding; and on 6 December 2021 the Local Court made an order in each of Mr Wilson’s and Mr Sullivan’s proceedings that the “[p]roceedings are permanently stayed. (not opposed)”.
PARTIES’ SUBMISSIONS
Allstaff submits that the claims the applicants made in the Local Court and which they make in this Court are in substance the same; parties may be estopped from commencing a claim they had previously commenced and which had been resolved without a court determining the claim on the merits; and the reason for which the stay orders were made was not to facilitate the applicants’ claims being ventilated in another forum, but to have their claims arbitrated.
The applicants, on the other hand, submit that the doctrine of res judicata applies only where a claim has been litigated and judgment entered on the claim; but the orders the Local Court made that the applicants’ claims be permanently stayed do not manifest the determination of the causes of action on which the applicants relied for their claims in the Local Court. The applicants further submit that res judicata did not arise on the making of the permanent stay orders, first, because the orders only applied to stay proceedings in the Local Court and, second, because the determination in this Court of the applicants’ claims for long service leave based on s 113(1) of the FW Act would not lead to any judgments or orders of this Court being inconsistent with any order or judgment of the Local Court.
PRINCIPLES
Allstaff relies on the set of principles that come under the heading “res judicata” and, to a lesser extent, “issue estoppel”. Those principles come into effect when a court makes a final decision on a cause of action, and it does not matter whether the decision is described as a judgment, or an order, or by some other name. The principal rule of res judicata is that “where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action”.[3] As Brennan J (as his Honour then was) noted in Port of Melbourne v Anshun Pty Ltd:[4]
The foundation of the rule, whether it be termed res judicata, or cause of action estoppel or judgment recovered, is the merging of the cause of action in the judgment. In reference to res judicata, Dixon J. said in Blair v. Curran . . . “the very right or cause of action claimed or put in suit has . . . passed into judgment, so that it is merged and has no longer an independent existence . . . .”
[3] Jackson v Goldsmith (1950) 81 CLR 446, at page 466 (Fullagar J)
[4] Port of Melbourne v Anshun Pty Ltd (1981) 147 CLR 589, at page 611
Res judicata applies to a “cause of action”, which has been described as “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”.[5] As Brennan J further noted in Anshun, however:[6]
There is an imprecision in the meaning of the term cause of action, which is sometimes used to mean the facts which support a right to . . . . ; sometimes to mean a right which has been infringed . . . , and sometimes to mean the substance of an action as distinct from its form . . . . . Imprecision in the meaning of cause of action tends to uncertainty in defining the ambit of the rule that a judgment bars subsequent proceedings between the same parties on the same cause of action. . . .
If cause of action is taken to mean a right, the rule is stated in terms of the passing of the right into judgment, and the rule precludes a party bound by the judgment from maintaining against another party bound by it any subsequent proceeding to recover a judgment giving a remedy to enforce or to compensate for an infringement of that right. . . . .
[5] Letang v Cooper [1964] EWCA Civ 5; [1965] 1 QB 232, at pages 242-243
[6] Port of Melbourne v Anshun Pty Ltd (1981) 147 CLR 589, at pages 611-612
Unlike res judicata, the principle of issue estoppel applies to issues of fact and law that a final judgment or order of a court determines. Fullagar J stated the principal rule of issue estoppel in Jackson v Goldsmith as follows:[7]
The rule as to issue estoppel is generally stated in the words of Lord Ellenborough in Outram v. Morewood (1803) 3 East, at p 355 (102 ER, at p 633) . His Lordship said that parties and privies are “precluded from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them . . . has been, on such issue joined, solemnly found against them.” This is, I think, a true case of estoppel, analogous to estoppel by deed and estoppel by representation. The same rule was concisely stated by Dixon J. in Blair v. Curran (1939) 62 CLR, at p 531 where his Honour said: - “A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.”
[7] Jackson v Goldsmith (1950) 81 CLR 446, at page 466
The principles of res judicata and issue estoppel apply to judgments or orders even if they have been made by the consent of the parties. That is demonstrated by the judgments of the High Court in Chamberlain v Deputy Commissioner of Taxation on which Allstaff relies;[8] and, in any event, it has been so held in a number of cases. Thus, in Kinch v Walcott, Lord Blanesburgh, speaking for the Privy Council, said:[9]
First of all their Lordships are clear that in relation to this plea of estoppel it’s of no advantage to the appellant that the order in the libel action which is said to raise it was a consent order. For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the Court made otherwise than by consent and not discharged on appeal. A party bound by a consent order . . . “must, when once it has been completed, obey it, unless and until he can get it set aside in proceedings duly constituted for the purpose”. In other words, the only difference in this respect between an order made by consent and one not so made is that the first stands unless and until it is discharged by mutual agreement or is set aside by another order of the Court; the second stands unless and until it is discharged on appeal.
[8] Chamberlain v Deputy Commissioner of Taxation (1987)
[9] Kinch v Walcott [1929] A.C. 482, at page 493. See also the judgment of Street CJ and Roper CJ in Eq in Isaacs v The Ocean Accident and Guarantee Corporation (1958) 75 WN (NSW) 48, at page 49:” “It is clear that the mere fact that the judgment is by consent does not detract from its conclusive effect upon the issues determined by it”.
DETERMINATION
The first question relates to the nature of the stay orders the Local Court made. Do they each constitute the final determination by the Local Court of the causes of action each of the applicants advanced for long service leave based on s 113(1) of the FW Act? That question is to be answered in the affirmative; and that is because of the word “permanently” precedes the word “stayed”. The intent of the words “permanently stayed” is that each applicant would not pursue by action their causes of action for long service leave based on s 113(1) of the FW Act. That the orders permanently staying the proceedings were made by consent render the orders no less binding than they would have been had they been made after the determination of the applicants’ claims on their merits.
It is the case that each applicant sought an order permanently staying the proceeding in the Local Court because he intended to have his claim for long service leave arbitrated as a general dispute before the New South Wales Industrial Commission, rather than as an individual claim; and that each applicant sought a permanent stay of the proceedings to allow his representative to raise the issue of nonpayment of long service leave for casuals as a dispute within the New South Wales Industrial Relations Commission. These matters, however, only reinforce that which is apparent from the words of each stay order, namely, that each applicant intended not to pursue in the Local Court his cause of action based on s 113(1) of the FW Act, because he intended to pursue a claim for long service leave by some means other than by action in the Local Court, that other means being the very different dispute resolution processes provided for by the New South Wales Industrial Commission.
It is true, as the applicants submit, that the permanent stay orders by their terms apply only to the proceedings in the Local Court. But that would be the case in relation to any judgment or order the Local Court would have made in relation to the applicants’ claims, including a judgment or order after hearing and determining the applicant’s claims on their merits.
The next question is whether the cause of action each applicant seeks to advance in this Court is the same as the cause of action each applicant advanced in the Local Court. That question, too, is to be determined in the affirmative. Each applicant in his Form 5 claims long service leave entitlements; and he does so on the basis that the Award would have covered him; that, under the Award, he would have been entitled to long service leave; and, in those circumstances, s 113(1) of the FW Act obliged Allstaff to pay to the applicant the long service leave to which the applicant would have been entitled under the Award. This reflects the cause of action each of the applicants advanced in the Local Court.
Finally, it is necessary to address the applicants’ submission that the determination in this Court of the applicants’ causes of action for long service leave based on s 113(1) of the FW Act would not lead to any judgments or orders of this Court being inconsistent with any order or judgment of the Local Court. That submission ignores the effect of the stay orders the Local Court made; their effect is to deny the applicants the right to maintain causes of action for long service leave based on s 113(1) of the FW Act. Permitting the applicant to pursue in this Court the same causes of action will result in this Court giving judgment or making orders that will be inconsistent with stay orders the Local Court made, if the applicants were to succeed in this Court on their causes of action based on s 113(1) of the FW Act.
CONCLUSION AND DISPOSITION
I am satisfied that the cause of action each of the applicants advances in this Court, being a cause of action based on Allstaff’s alleged breach of s 113(1) of the FW Act, is the same cause of action each of the applicants advanced in the proceedings in the Local Court. I am further satisfied that the orders the Local Court made that each of the proceedings be permanently stayed, even though made by consent, constituted the final determination by the Local Court of the causes of action for long service leave based on s 113(1) of the FW Act each of the applicants advanced in the Local Court.
The principle of res judicata, therefore, applies to the causes of action based on s 113(1) of the FW Act that each of the applicants seek to advance in this Court and, for that reason, none of the applicants has reasonable prospects of successfully prosecuting his claim for relief in this Court based on that cause of action. I therefore propose to make in each proceeding the applicants have brought in this Court an order pursuant to r 13.13 of the GFL Rules dismissing the proceeding. I will also reserve the question of costs of each proceeding.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 24 July 2024
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