Turlinski v North Regional TAFE WA

[2020] WADC 28

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   TURLINSKI -v- NORTH REGIONAL TAFE WA [2020] WADC 28

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   4 MARCH 2020

DELIVERED          :   11 MARCH 2020

FILE NO/S:   CIV 4200 of 2019

BETWEEN:   HENRY TURLINSKI

Plaintiff

AND

NORTH REGIONAL TAFE WA

Defendant

Catchwords:

Practice and procedure - Action for financial loss resulting from alleged unfair dismissal - Whether such an action can be pursued in the District Court - Appeal to the Public Service Appeals Board - Whether the decision of the Board created a res judicata estoppel

Legislation:

Industrial Relations Act 1979 (WA), div 2 pt 11A

Result:

Statement of claim struck out

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	Mr J Carroll

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	State Solicitor for Western Australia

Case(s) referred to in decision(s):

Astone v Cat Welfare Society [2012] WADC 152

Bednall v Wesley College [2005] WASC 101

Diaz v Schlumberger Australia Pty Ltd [2011] WADC 135

DEPUTY REGISTRAR HEWITT:

1. In this matter the plaintiff is a former employee of the defendant who claims damages which in essence devolve from what the plaintiff alleges is his unfair dismissal in April 2013 by the defendant.  At that time the plaintiff was living in Tom Price and as part of his duties was required to attend from time to time in Newman.  As a consequence of the plaintiff's dismissal he was required to relocate from Tom Price to Perth and his wife also of necessity had to abandon her employment in that town and travel with him to Newman.  The plaintiff claims $570,000 being loss of wages and superannuation together with a further $380,000 representing his wife's losses arising through her relocation.

2. The matter comes before me on the defendant's application to strike out the statement of claim on the basis that it is an abuse of the process of the court or may prejudice, embarrass or delay the fair trial of the action.  It is obvious that the plaintiff's claim for the losses sustained by his wife is unsustainable.  There is no basis upon which the plaintiff could possibly be entitled to recover the monies which he claims on her behalf.

3. The plaintiff's claim essentially revolves around a claim of unfair dismissal.  As such there are some obstacles which face a plaintiff pursuing such a claim.  In the case of Diaz v Schlumberger Australia Pty Ltd [2011] WADC 135 [15] her Honour Judge Wager noted:

   There is no general contractual right or common law cause of action to recover financial losses arising from the unfair manner of dismissal of an employee that can be the subject of a claim in this jurisdiction.

4. Likewise her Honour Judge Davis in the case of Astone v Cat Welfare Society [2012] WADC 152 [37]:

   … there is no general contractual right or common law cause of action to an employee to recover financial losses arising from the unfair manner of his or her dismissal …

5. The cases quoted in support of that proposition were the Diazv Schlumberger Australia Pty Ltd case and an earlier case Bednall v Wesley College [2005] WASC 101 [65]. In that case Master Newnes (as he then was) held that in general there was no right of action at common law to recover financial losses arising from an unfair manner of dismissal.

6. These cases make it very clear that the plaintiff has neither a common law right nor a contractual right or common law right to recover financial losses arising from unfair dismissal. That is not to say that the employee dismissed is not entitled in those circumstances to proper notice or payment in lieu thereof. As I understand it in the present circumstances payment in lieu of notice was given to the plaintiff. These cases to my mind establish that the plaintiff's case based as it is on unfair dismissal has no prospect of success but there is a further obstacle in the way of the plaintiff's action. By proceeding number 1011 of 2013 the plaintiff commenced an appeal against his dismissal with the Public Service Appeal Board. That appeal was heard on Tuesday 19 November 2013 and a decision delivered on 29 November 2013. The grounds pursued in that appeal were that his supervisor did not have the authority to direct him and therefore the direction which he received was invalid. It was argued that in those circumstances the dismissal for failing to comply with a lawful direction was unfair. The conclusion which was reached by the board was that the supervisor did have authority to issue a direction to the appellant and the appellant was obliged to comply with that direction and that the appellant knew this to be the case. In those circumstances the direction with which he refused to comply with was a valid direction and as such his ground of appeal was found to be unsustainable and the appeal dismissed. The Public Service Appeal Board appointed under div 2 pt 11A of the Industrial Relations Act 1979 (WA) has jurisdiction to hear and determine appeals such as that which was brought by the plaintiff in this action. It therefore follows that the board made a finding that the plaintiff refused to obey a lawful direction as a consequence of which his dismissal was justified. The plaintiff has raised in his materials a great number of criticisms of the materials which were filed by the plaintiff alleging lack of good faith, dishonesty and various other things on the part of the offices of the defendant. Those matters are largely irrelevant because there is no doubt that the plaintiff's supervisor issued a direction and that the plaintiff refused to comply with it. Nothing in the complaints made by the plaintiff are relevant to that decision. The principle of res judicata is one which has long been recognised in our legal system: Stroud's Judicial Dictionary of Words and Phrases Vol 3, 9^th ed, defines res judicata in the following terms:

   The phrase 'res judicata' is used to include two separate states of things.  One is where a judgment has been pronounced between parties and findings of fact are involved as a basis for that judgment.  All the parties affected by the judgment are then precluded from disputing those facts, as facts, in any subsequent litigation between them.  The other aspect of the terms arises when a party seeks to set up facts which, if they had been set up in the first suit, would or might have affected the decision.  This is not strictly raising any issue which has already been adjudicated, but it is convenient to use the phrase res judicata as relating to that position (Robinson v Robinson [1943] P. 43 at 44, per Henn Collins J.).

   This plea cannot be entertained but on the production of the record of the court on which it is founded or on some valid reason being given for its non‑production.  See The Annie Johnson, 91 L.J.P. 64.

   'Res Judicata' is an omnibus term which encompasses a range of different circumstances that precludes a litigant in civil proceedings from raising for a second time issues determined, or which should have been determined, between the same parties in earlier proceedings.  In a context far removed from these proceedings, namely intellectual property, the various aspects of the doctrine, or perhaps more accurately the various different rules encompassed within the term, were considered by the Supreme Court in Virgin Atlantic Airways Limited v Zodiac Seats UK Limited (formerly known as Contour Aerospace Limited) [2013] UKSC 46; [2014] AC 160. Lord Sumpton summarised the position between [17] and [26]. Lady Hale and Lords Clarke and Carnworth agreed with his judgment. Lord Neuberger expressly agreed with these paragraphs. Lord Sumpton observed that the 'portmanteau term' was a label which 'tends to distract attention from the content of the bottle'. (Auzins v Prosecutor General's Office of the Republic of Latvia [2016] EWHC 802 (Admin).)

7. In my mind it is clear that a tribunal vested with the authority to hear the plaintiff's appeal did so and made findings of fact which are inconsistent with the propositions which are advanced by the plaintiff in the present proceedings.  Additionally in my view the action which was pursued by the plaintiff is unsustainable in any event because of the reasons earlier explained.  For these reasons I am of the view that the plaintiff's statement of claim does not disclose any sustainable action and it should be struck out.

8. It is my intention to distribute a copy of this decision to the parties and I propose to make orders:

   1.The plaintiff's statement of claim be struck out.

   2.The plaintiff pay the defendant's costs of the application.

9. If a party wishes to seek orders which are different to those I have proposed they should write to the court and ask for the matter to be listed before me for directions.  I will allow 14 days after the decision is emailed to the parties for that to happen and if no request is received shall pronounce the order outlined above.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

DH
Court Officer

6 MAY 2020