2.Set aside paragraphs 2, 3, 4 and 5 of the order of the Court of Appeal of the Supreme Court of New South Wales made on 21 July 2014.
3.Remit the matter to the Court of Appeal to determine the issue raised by the respondent's notice of contention in this Court.
4.The respondent pay the appellant's costs of the appeal to this Court and of the appeal to date in the Court of Appeal.
On appeal from the Supreme Court of New South Wales
Representation
D M J Bennett QC with R I Goodridge for the appellant (instructed by Monaco Solicitors)
B W Walker SC with K W Andrews for the respondent (instructed by Colin Biggers & Paisley Solicitors)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Tomlinson v Ramsey Food Processing Pty Limited
Estoppel – Issue estoppel – Appellant employed at abattoir operated by respondent – Appellant subsequently employed by third party providing labour services to respondent – Appellant complained to Fair Work Ombudsman that entitlements not paid upon termination of employment – Fair Work Ombudsman commenced proceedings in Federal Court of Australia against respondent – Federal Court determined respondent, not third party, was appellant's employer – Appellant commenced proceedings claiming damages from respondent for personal injury sustained at abattoir – Appellant argued third party, not respondent, was his employer – Respondent argued appellant was issue estopped by reason of Federal Court proceedings from denying that respondent was appellant's employer – Whether appellant was issue estopped by reason of declarations and orders made in Federal Court proceedings – Whether appellant was privy in interest with Fair Work Ombudsman in Federal Court proceedings.
Words and phrases – "claim under or through", "estoppel", "issue estoppel", "on behalf of", "privity of interest", "privy in interest".
FRENCH CJ, BELL, GAGELER AND KEANE JJ. The question in this appeal is whether the claiming by the Fair Work Ombudsman and the making by a court of declarations and orders in a civil penalty proceeding created an issue estoppel on which a respondent to that proceeding was entitled to rely in a subsequent common law proceeding brought against it by a worker.
The resolution of the question is that the claiming and the making of the declarations and orders created no issue estoppel, for want of sufficient connection in interest between the Fair Work Ombudsman and the worker.
How the question arises
Ramsey Food Processing Pty Limited ("Ramsey") operated an abattoir at South Grafton from 2005 until 2009. Mr Tomlinson started work at the abattoir in 2005.
Mr Tomlinson and other workers at the abattoir were told in October 2006 that their previous employment was at an end…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
Case
[2015] HCA 28
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr Tomlinson against Ramsey Food Processing Pty Ltd. The dispute arose from Mr Tomlinson's claim for damages for personal injury sustained while working at an abattoir operated by Ramsey Food. Previously, in separate proceedings before the Federal Court, the Fair Work Ombudsman had successfully argued that Ramsey Food, not a third-party labour provider named Tempus, was Mr Tomlinson's employer for the purposes of workplace entitlements. Mr Tomlinson subsequently initiated proceedings in the District Court, where he argued that Tempus, not Ramsey Food, was his employer, seeking to recover damages for his injury. Ramsey Food contended that Mr Tomlinson was issue estopped by the Federal Court's determination from denying that Ramsey Food was his employer.
The central legal issues before the High Court were whether Mr Tomlinson was issue estopped by the Federal Court's finding in the Fair Work proceeding from asserting that Tempus was his employer in the District Court proceedings, and whether Mr Tomlinson was privy in interest with the Fair Work Ombudsman in the Federal Court proceedings. The High Court was required to determine the scope and effect of the Federal Court's decision on the subsequent personal injury claim.
The High Court reasoned that the Federal Court's determination in the Fair Work proceeding, which focused on whether Ramsey Food was the employer for the purposes of the Fair Work Act, did not extend to definitively determining the employer for the purposes of the personal injury claim under the Workers Compensation Act. The Court held that the issue before Buchanan J in the Fair Work proceeding was solely whether Ramsey Food was the employer in substance and reality for the purposes of that specific legislation. This determination did not preclude Mr Tomlinson from arguing in the District Court that Tempus was his employer for the purposes of his personal injury claim, particularly as the question of who was the employer liable under the Workers Compensation Act had not been considered or determined. Consequently, the High Court found that Mr Tomlinson was not issue estopped.
The High Court allowed the appeal, setting aside paragraphs 2, 3, 4, and 5 of the order of the Court of Appeal of the Supreme Court of New South Wales. The matter was remitted to the Court of Appeal to determine the issue raised by the respondent's notice of contention. The respondent, Ramsey Food Processing Pty Ltd, was ordered to pay Mr Tomlinson's costs of the appeal to the High Court and of the appeal to date in the Court of Appeal.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside paragraphs 2, 3, 4 and 5 of the order of the Court of Appeal of the Supreme Court of New South Wales made on 21 July 2014.
3. Remit the matter to the Court of Appeal to determine the issue raised by the respondent's notice of contention in this Court.
4. The respondent pay the appellant's costs of the appeal to this Court and of the appeal to date in the Court of Appeal.
Background
Background to the litigation
For the reasons which follow, it should be concluded that the appellant was not.The facts On 4 October 2006, Greenwood J handed down judgment in McIlwain v Ramsey Food Packaging Pty Ltd (No 4)[67] ("the McIlwain proceeding"). His Honour found that three of the companies in what was called "the Ramsey Group" had breached s 298K of the Workplace Relations Act 1996 (Cth) by terminating the employment of 12 employees for reasons that were prohibited under the Act. Greenwood J imposed penalties for breach of the Act totalling $84,000 and ordered that compensation be paid to the employees. [67](2006) 158 IR 181; [2006] FCA 1302. In August 2010, the Fair Work Ombudsman instituted the Fair Work proceeding against Ramsey Food and Mr Stuart Ramsey pursuant to s 682(1)(d) of the Fair Work Act 2009 (Cth) and s 719 of the Workplace Relations Act. The claim alleged that Ramsey Food had acted in breach of the Federal Meat Industry (Processing) Award 2000 ("the Award") and thus the Fair Work Act by failing to pay the appellant and ten other former employees of Ramsey Food payments of wages in lieu of notice, severance pay, accrued annual leave and interest on those entitlements. Buchanan J handed down judgment in the Fair Work proceeding on 19 October 2011[68]. In his reasons for judgment, his Honour described the issue for determination as being whether Ramsey Food as the employer of 11 "complainant employees" failed to pay those employees amounts due to them under the Award and s 235 of the Workplace Relations Act (as it then stood). He defined the principal question in the proceeding as being whether the employees had been employed by Ramsey Food (as the Ombudsman contended) or by Tempus, a company which had been "inter-positioned between [Ramsey Food] and the employees" (as Ramsey Food contended). There was also a related question of whether Mr Ramsey was knowingly concerned in the conduct of Ramsey Food[69]. [68]Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174.[69]Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174 at 176 [1]. Buchanan J found that, at all relevant times since 1998, Mr Ramsey had been in effective control of the management and operation of an abattoir in Grafton, New South Wales, and had so exercised control through a number of companies established by him or at his request which were called the Ramsey Group[70]. Then, shortly after Greenwood J made final orders in the McIlwain proceeding, Mr Ramsey arranged for the acquisition of a new shelf company (Tempus) to be added to the Ramsey Group and at the same time for the winding up of each of the three employing companies[71]. Then, having instigated those arrangements, Mr Ramsey directed that letters dated 16 October 2006 be sent by Tempus to each of the 11 complainant employees, as follows[72]: "On the 4th October last the Federal Court of Australia made orders against your employer. These orders fined, penalised and awarded costs against your employer causing it to be insolvent and accordingly, your employer cannot continue to incur wage commitments whilst insolvent. Accordingly, your employment with your employer is at an end. You are at liberty to approach Tempus Holdings Pty Limited who may have a position for you, and who may be willing to honour your entitlements."[70]Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174 at 177 [4].[71]Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174 at 179 [12], 181 [21].[72]Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174 at 179 [13].
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, BELL, GAGELER AND KEANE JJ
NETTLE J
(dissent)
Of course, so to observe is not necessarily to exclude the possibility that Ramsey Food might also have been required to take out cover or be covered under a workers' compensation policy. Sub-sections (1B) and (2) of s 155 of the Workers Compensation Act suggest that it might have been so. Nor is it to deny the possibility that, if the appellant had made a claim for compensation against Ramsey Food in respect of the injury the subject of the work injury claim, Ramsey Food would have been liable to pay compensation under the Workers Compensation Act in respect of that injury. But there has been no consideration or determination of those issues at any level, still less of whether Tempus would thus have ceased to be liable to pay compensation under the Workers Compensation Act and so ceased to be "the employer liable to pay ... compensation" under the Workers Compensation Act within the meaning of s 151C of that Act. The sole question for Buchanan J was whether Ramsey Food was as a matter of "substance and reality" the appellant's employer for the purposes of the Fair Work Act. Conclusion and orders In the result, the District Court judge was right to hold that Buchanan J's finding that Ramsey Food was the employer for the purpose of the Fair Work proceeding did not estop the appellant from contending that Tempus was his employer for the purpose of the District Court proceeding. Accordingly, the appeal should be allowed with costs. Orders 2 to 5 of the Court of Appeal dated 21 July 2014 should be set aside. In their place it should be ordered that the appeal to the Court of Appeal be dismissed with costs.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, BELL, GAGELER AND KEANE JJ,