Weber v Carkeek
[2019] FCCA 2572
•16 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WEBER v CARKEEK & ORS | [2019] FCCA 2572 |
| Catchwords: INDUSTRIAL LAW – Small claim – claim for unpaid farm work – allegations and issues of pay for applicant subject of proceedings in the Victorian Civil and Administrative Tribunal and appeal to the Supreme Court of Victoria – res judicata – issue estoppel – abuse of process – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.548, 570 Federal Circuit Court Rules 2001 (Cth), rr.13.10, 21.02 |
| Cases cited: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 |
| Applicant: | MARK WEBER |
| First Respondent: | ALISON CARKEEK |
| Second Respondent: | EWAN CARKEEK |
| Third Respondent: | LORRAINE CARKEEK |
| File Number: | MLG 2473 of 2018 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 1 August 2019 |
| Date of Last Submission: | 22 August 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 16 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Self-Represented |
| Solicitors for the Applicant: | Self-Represented |
| Counsel for the First, Second and Third Respondents: | Mr Hooper |
| Solicitors for the First, Second and Third Respondents: | Davies Moloney |
| Solicitor from the Fair Work Ombudsman: | Ms West |
ORDERS
The proceedings be dismissed.
The applicant pay the respondents’ costs fixed in the amount of $3,000.00 within 14 days.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2473 of 2018
| MARK WEBER |
Applicant
And
| ALISON CARKEEK |
First Respondent
| EWAN CARKEEK |
Second Respondent
LORRAINE CARKEEK
Third Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for decision concern whether a small claims application filed in this Court should be dismissed because the claims made and parties named in the application are the same as those before the Victorian State Courts.
Background
These proceedings were commenced by an application filed by Mark Weber (“the applicant”) on 17 August 2018 in the Small Claims List of the Court. Alison Carkeek, Ewan Carkeek and Lorraine Carkeek (“the respondents”) were named as the respondents to the application. The application made under s.548 of the Fair Work Act 2009 (Cth) (“the FW Act”), which was accompanied by a Form 5 (setting out the details of the claim) first came before the Court on 22 February 2019.
On 21 February 2019, the respondents sent to the Court what purported to be a statement on behalf of the respondents. On 22 February 2019, a response was filed by the respondents. When the matter came before the Court the applicant appeared in person, Ms Lorraine Carkeek appeared for the respondents and an officer from the Fair Work Ombudsman appeared amicus curiae.
As the respondents alerted the Court in their response, the applicant and the respondents have been involved in proceedings in the Victorian Civil and Administrative Tribunal (“VCAT”). By the time the matter came before this Court, there had been a decision of VCAT as a result of those proceedings.
In the orders that were made at the first Court date of these proceedings on 22 February 2019, it was noted that the parties advised the Court that the orders made in Weber v Carkeek (Civil Claims) [2018] VCAT 1944 were being appealed to the Supreme Court of Victoria by the applicant. Given this, the following orders were made in these proceedings:
“1.The respondents have until 22 March 2019 to file and serve any amended response including any application for leave to be represented in these proceedings along with any application for summary dismissal of the application filed on 17 August 2018 and any affidavit material in support.
2.The applicant have until 23 April 2019 to file and serve any amended application in reply and any material in support.
3.Subject to the respondents and applicant complying with order 1 and 2 above, any application made pursuant to order 1 be listed for hearing on 13 May 2019 at 10.00am in the Federal Circuit Court of Australia at Melbourne.
4.The application filed on 17 August 2018 be otherwise listed for jurisdictional hearing on 1 August 2019 at 10.00am in the Federal Circuit Court of Australia.
5.The applicant to file and serve any affidavit material in support by 17 June 2019.
6.The respondents to file and serve any affidavit material in reply by 15 July 2019.
7.The applicant have until 25 July 2019 to file and serve any material in reply.
8.No further material be filed without further order of the Court.
AND THE COURT NOTES THAT:
A.The parties advise the orders in Weber v Carkeek (Civil Claims) [2018] VCAT 1944 are being appealed to the Supreme Court…”
The parties did not comply with those orders. Given this, the parties were advised that the hearing on 13 May 2019 would be vacated and the matter would remain listed for 1 August 2019.
When the matter returned to Court on 1 August 2019, the parties had not filed any further material with the exception of the solicitor of the respondents filing a notice of address for service.
On that occasion, the applicant appeared in person. With leave of the Court and without objection, Mr Hooper of Counsel appeared for the respondents and an officer from the Fair Work Ombudsman appeared amicus curiae. The following orders were made:
“1.Leave be granted for the respondents to be represented by Counsel this day.
2.All material that was not filed in accordance with orders of 22 February 2019 be removed from the Court file and returned to the parties.
3.The parties file and serve written submissions only, on the question of whether the application filed 17 August 2018 should be dismissed on the basis of res judicata, issue estopple or abuse of process, as follows:
a.the applicant by 8 August 2019;
b.the respondents by 15 August 2019;
c.the Fair Work Ombudsman, if any, by 19 August 2019; and
d.the applicant in reply only by 22 August 2019.
4.No other material is to be filed by the parties other than in accordance with the above orders.”
Submissions of the parties
The applicant
The applicant filed his submissions on 8 August 2019. Those submissions addressed the “Background” before making claims about his “Employment” with the respondents and then addressing the “VCAT hearing”.
The applicant’s submissions then went on as follows:
“22.The VCAT is a creature of statute and does not have any inherent Jurisdiction. In this case, it was not open to the VCAT or does it have jurisdiction to hear employment related matters and cannot hear matters arising out of employment contracts.
23.In the VCAT case C3450/2018 the reasons and findings do not provide an outcome and final reasons giving the rights to title relating to the employment of the applicant. The reasons are devoid of any significant employment related matters and at best be described as subsidiary or collateral
24.The only discussion in the reasons that has any significance is that at Para 12 (V) it is identified that 104 hours were worked at $25.00/hr. The purpose of this was to determine the amount of rent owing.”
The applicant then cited the decision of Dixon J in Blair v Curran (1939) 63 CLR 464 before submitting:
“26.In the VCAT decision there are no ultimate facts forming the very title to rights involving a claim for employment entitlements for underpayment and non-payment of wages, therefore does not give rise to issue estoppel in this matter
27.The fact that the cause of action raised in these proceedings could not be raised in the VCAT proceeding for want of jurisdiction, Anshun estoppel is also precluded and abuse of process cannot be applied in these proceedings
28.The VCAT position of abuse of process can be found in the decision of Weber v Deakin University (Human Rights) [2014] VCAT 1440 (6 November 2014) at [20], the member stated:
"I reject the assertion by the Respondent s that the claim by the Applicant is an abuse of process because of concurrent proceedings in the Magistrates' Court. The other litigation concerns different legislation and different matters for consideration. It is not an abuse of process to have proceedings related to the same facts, being heard at the same time. What is relevant is whether the facts give rise to different causes of action. I would however be required to take into account any award of damages in my consideration of what damages are appropriate compensation in the circumstances. Mr Weber would not be able to "double dip"."
29.The application made 17 August 2018 to the FCC small claims list is confined to underpayment of hourly rate, non-payment of overtime, non- payment of meal allowances and unpaid compulsory superannuation contributions under the Fair Work Act 2009.
30.In particular the majority of the claim in the FCC application is for work carried out from 15 April 2016 to 27 June 2017. This predates the period of the management consultancy period of 27 June 2017 to 31 December 2017 which was heard and determined by the VCAT.
31.In a submission from the respondents to the FCC filed on 21 February 2019 (dated 21 March 2019) the respondents claim that the applicant was self-employed on contract. However on two separate occasions the respondents wrote to the VCAT confirming that the applicant was employed. Firstly on 25 June 2018 and secondly on 26 July 2018. The correspondence is attached as MPW002 and MPW003. In all the circumstances, and for the purposes of this matter, the applicant was indeed employed as an employee under the protections of the Fair Work Act 2009
32.For all the above reasons, the applicant submits the respondents are not entitled to apply estoppel or res judicata or any other preclusion, and as the Fair Work Act 2009 is beneficial in nature, depriving the applicant of the entitlements under the Act would be in contravention of the "spirit" of the Act.”
The respondents
The respondents’ submissions were filed on 15 August 2019. Initially, there was an objection to certain documents that the applicant had attached to his submissions however, the respondents’ submissions then went on to summarise their position as follows:
“3.Mr. Weber has brought a claim to the Federal Circuit Court (FCC) alleging that he is owed monies in relation to employment entitlements under a Modem Award.
4.However, the cause of action that he raises and the issues he seeks to agitate in the FCC in relation to his claim have already been considered and resolved pursuant to hearing and final determination at VCAT.[1]
[1] Weber v Carkeek (Civil Claims) [2018] VCAT 1944
5.It was found at VCAT that there was an "house/work agreement"[2] between Weber and Ewan and Lorraine Carkeek with terms to the legal effect that:
[2] Ibid, paragraph 4
a.Weber would live rent free in a house on the Carkeek’s farm (the farm) and receive other benefits from the Carkeek’s including agistment for his animals and horse feed, electricity and fuel; and
b.in consideration for the above benefits, Weber would work for approximately 20 hours work per week on the farm.
6.The VCAT decision considered and determined:
a.the identity of the parties to the house/work agreement;
b.the terms of the house/work agreement;
c.the consideration each party provided to the other in relation to the house/work agreement; and
d.consideration, by way of monies, owing in relation to the house/work agreement (wherein the money owed by Weber for occupying the house and receiving other benefits from the Carkeek’s exceeded the value of the work that he had provided to the Carkeek’s).
7.Weber now seeks to reopen and reagitate the issue of what he is owed by the Carkeek’s for his work.
8.The Carkeek’s object to Weber doing this and say that all issues in relation to compensation (in relation to consideration provided by both parties) under the house/work agreement were resolved pursuant to VCAT's findings in relation to the house/work agreement.
9.The Carkeek’s submit that Weber is barred from reopening issues agitated at VCAT before the FCC by the legal principles of:
a.Res judicata;
b.Issue estoppel;
c.Anshun estoppel;
d.Abuse of process.
10.The Carkeek's have already been subject to Weber's claims for consideration for work that he performed for them on the farm, indeed Weber's VCAT application effectively continues by way of Weber's appeal of the VCAT decision to the Supreme Court of Victoria.
11.The Carkeek's position in relation to the VCAT decision bringing finality to issues of compensation for work is in essence that stated by Lord Bingham of Cornhill speaking in the context of civil actions, and principles of abuse of process, res judicata and issue estoppel, in Johnson v Gore Wood and Co[3]:
The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole.
“12.The Respondent's submit that Weber's application to the Federal Circuit Court should be summarily dismissed.
[3] [2002] 2 AC 1 at [31]
Grounds for summary dismissal
13.By r 13.10(1) of the Federal Circuit Court Rules, the Carkeek’s apply to the FCC for an order that judgment be given against Weber because he has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding and/or or the proceeding is an abuse of the process of the Court.
14.The Carkeek’s submit that Weber's application to the FCC should be summarily dismissed as there is a relevant res judicata and/or issue estoppel and/or the proceeding is affected by an Anshun estoppel and/or there is an abuse of process.”
The respondents’ submissions then went on to address why there was a relevant “res judictata” and/or “issue estoppel” and/or “Anshun estoppel” and/or “abuse of process” before contending that, for the reasons set out in those submissions, the application should be dismissed pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001 (“the Rules”).
The applicant’s reply
The applicant provided a “responce” (sic) on 22 August 2019. The applicant’s reply submissions were again an attempt to recast his application and so much is clear from the following:
“6.To assist the Court, the applicant submits that there are three relevant periods of time for consideration:
a.15 April 2016 to 27 June 2017 (the first period)
b.28 June 2017 to 31 December 2017 (the second period)
c.1 January 2018 to 27 October 2018 (the third period)
7.The respondents submissions can be characterised in that their defence relies on the VCAT decision and the cause of action in those proceedings were dispensed with by way final orders being made in favour of the respondent s in the sum of $181,734.00 for rent.
8.In order to give clarity to this, the rent was awarded in two separate tranches. At para 25 of the VCAT orders $6732.00 was awarded for the period up to up to the 31 December 2018 (the second period)
9.At para 21 the reasons value the rent owing for 2018 (the third period) at $12,000.00 giving a total of rent owing at $18,734.00 (see para 30)
10.The applicant has stated that he was employed in his application to the FCC that he was employed casually and continues to assert this proposition.
…
12.The applicant has already made it clear in his submissions that in the second period he only worked 104 hours of casual employment as confirmed in the VCAT decision at para 12 (v).
13.The application to the FCC seeks to only be compensated in the second period for the underpayment of 104 hours based on the difference between the $25.00/hr paid and what the modern award states should have been paid
14.In the third period the applicant did not work any casual hours at all. After matters soured between the applicant and respondents in January 2018, the respondents did not offer up any more work to the applicant. Therefore the rent awarded to the respondents in the third period does not relate to any employment related contracts but merely a commercial contract for rent owing.
15.Somehow the respondents seek to entangle the work agreements (which the applicant asserts are employment contracts) (see shortlands) in a period (third period) where no ongoing employment is recognised and in a period (second period) where the employment and the rent are separate
16.In regard to the second period, the award of $6,734.00 is equally related directly to a commercial contract of rent, as in para 25 of the VCAT decision there is no reference as such to offsets against an employment contract but merely admissions on the part of the applicant that for the second period, he owed rent. This does not give rise to what could be said is cause of action agitated for compensation under an employment contract
17.Regard by this honourable court ought to given significant weight to the fact that the award of rent owing against the applicant was a cause of action initiated by the respondents and not the applicant. Notably in para 24 the respondents points of defence do not seek set off for agistment and "rent". Further by way of orders of the tribunal dated 11 October 2018, the respondents were given leave to make a counterclaim limited to agistment.
18It was only after the hearing commenced that the respondents agitated for rent owing which is matter being appealed to the Supreme Court as the applicant alleges it breaches the doctrine of equality of arms
19.In all the circumstances the claims by the respondents that this somehow forms a cause of action made out by the applicant in the VCAT proceedings must be dismissed entirely
20.In respect of the first period it should be noted that the respondents have not sort to admit or deny that the applicant was employed by them, which it seems has been carefully orchestrated to avoid addressing the issue of that the applicant was in fact employed by the respondents. The focus of the respondents submissions has been to focus away from the central issue and the first period, in order to avoid any admission that the applicant was employed by the respondents.
21.Herein lies the importance of the correspondence referred to as MPW002 and MPW003 which the respondents seek to have rejected. These are clear admissions by the respondents that the applicant was employed by them, a critical piece of evidence supporting the applicants claim dated 17 August 2018.
22.At para 13 (ii) of the VCAT decision, the member has confirmed
"He (Carkeek) accepts Weber's record of hours worked"
23.This relates to the narrative given at Para 12 of the VCAT decision regarding the work agreement dating back to April 2016.
24.Therefore there can be no mistaking the fact that the hours claimed by the applicant for hours worked under his employment agreement with the respondent is now longer undeniable. All that remains is to quantify the loss of wages not paid by the respondents which the applicant refers to in his application and repeats.
25.The respondents have not put up a defence to the applicants application for unpaid wages etc. made out in the application 17 August 2018, and for the above reasons the respondents application to have the application dismissed must fail.”
In reply to the submissions made by the respondents the applicant submitted:
“26.The application made out to the VCAT was filed on the 16 May 2018 and final orders made 7 December 2018.
27.The application to the FCC was filed 17 August 2018.
28.The latter was listed for hearing in November 2008, but was adjourned to 22 February 2019 because of the unavailability of Judge O'Sullivan hearing the matter.
29.For a basis of res judicata or estoppel to be applied, matters must have been agitated after final orders were made based on the same facts and issues of law. In this matter, the application to FCC was made out well before final orders were made by the VCAT and therefore does not give rise to res judicata or any forms of estoppel or abuse of process.
30.Equally during the course of the VCAT hearing and which was not confirmed in the VCAT orders, the respondents did not raise the issue of the application made out to the FCC, nor did they seek to have any parts of the VCAT proceeding estopped for want of the FCC application.
31.Further the respondents response of 21 February 2019 makes no application to have the application dismissed based on res judicata or estoppel, which if that was an issue, should have been raised in that response.”
Finally, the applicant’s reply set out why it was said that Alison Carkeek should remain a party to the proceedings and the “new” orders that he sought.[4]
[4] These appearred different to what was sought in the Form 5.
Approach to Small Claims
Section 548 of the FW Act provides:
“(1)Proceedings are to be dealt with as small claims proceedings under this section if:
(a)a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit Court; and
(b)the order relates to an amount referred to in subsection (1A); and
(c)the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1A)The amounts are as follows:
(a)an amount that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b)an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.
Limits on award
(2)In small claims proceedings, the court may not award more than:
(a)$20,000; or
(b)if a higher amount is prescribed by the regulations--that higher amount.”
I note the decision of Lucev FM (as His Honour then was) in McShane v Image Bollards Proprietary Limited (2011) FMCA 215 which was approved of by Nicholls FM (as His Honour then was) in Black v Young Republic & Anor [2012] FMCA 729. That decision discussed the procedure that the Court should adopt in these sorts of matters and in particular, the fact that, whilst the Court generally acts without regard to legal forms and technicalities, it is still necessary for the applicant to prove their claim as the Court can only act on evidence having a rational probative force.
Decision in VCAT
On 7 December 2018, for the reasons set out in Weber v Carkeek (Civil Claims) [2018] VCAT 1944 (“the VCAT decision”), Senior Member Forde made the following orders:
“1.The claims against the third respondent are dismissed.
2.Mark Weber must pay Ewan Carkeek and Lorraine Carkeek the sum of $84,014.35.
3.Ewan Carkeek and Lorraine Carkeek must pay Mark Weber the sum of $10,000.00.
4.Ewan Carkeek must pay Mark Weber the sum of $125,142.42.”
The VCAT decision set out the details of the parties and the claims made (at paragraphs [1]-[7]), identified the evidence and issues (at paragraphs [8]-[119]) before providing a summary of findings made on those issues (at paragraphs [120]-[122]).[5] The applicant told the Court he was appealing the VCAT decision to the Supreme Court.[6]
[5] The applicant would appear to have been involved in proceedings in VCAT previously albeit against different respondents. This is referred to in the applicant’s own submissions see Weber v Deakin University (Human Rights) [2014] VCAT 1440. See also Weber v Preston (t/a Infield Park Equestrian Centre) (Civil Claims) [2014] VCAT 444.
[6] There was subsequently a costs decision in Weber v Carkeek (Civil Clams) (Costs) [2019] VCAT 488
Grounds of application in this Court
In the Form 5 filed with the small claims application, the applicant said, at item 6 that his employer was the three respondents, at item 16 that his occupation was ‘Farm Worker’, at items 20 and 24 that he started work at the respondents’ property in Berringama, Victoria in April 2016 and at item 23 that his employment status was a casual. The applicant alleged a contravention of the “Pastural Award” (sic) at item 25 and sought $17,180.00 at item 26, which largely included money that he claimed was owing to him as a result of his work.
In their response filed on 22 February 2019, the respondents said inter alia that the applicant had “put his full case to VCAT over 6 sitting days and has not accepted VCAT orders – now appealing to Supreme Court.”
The orders made on 1 August 2019 afforded the Fair Work Ombudsman an opportunity to make submissions on the issues the parties were asked to address. On 22 August 2019, the Fair Work Ombudsman confirmed that it abjured the opportunity to do so.
Consideration
Rule 13.10 of the Rules provides:
“Disposal by summary dismissal
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
As the orders made on 1 August 2019 set out, the parties were asked to make submissions (which have already been referred to) on the question of whether the application should be dismissed.
The rule of res judicata operates so that generally, a proceeding cannot be maintained in respect of a cause of action on which judgment has been entered as long as that judgment stands (see Chamberlain v Commissioner of Taxation (1988) 164 CLR 502; Blair v Curran (1939) 62 CLR 446).
For res judicata to apply, the cause of action must be the same in the new proceeding as that contended in the original proceedings (Chamberlain at [510]-[511]). The cause of action in this sense is to be determined by its substance and not its form.
The applicant had an opportunity to file affidavit material and has not done so. The applicant’s claims are therefore, contained in the Form 5 (which was filed prior to the VCAT decision but after the 6 day hearing that led to it).
As was recorded in the VCAT decision, the applicant’s claim in VCAT was set out in the “35 page ‘Further Amended’ Points of Claim’”. Whilst it is true that in these proceedings the applicant sought to agitate matters pursuant to s.548 of the FW Act, his claim was for payment for work as particularised in the Form 5.
It is worth repeating certain paragraphs of the respondents’ submissions at this point as I am satisfied they accurately summarise the situation as follows:
“3.Mr. Weber has brought a claim to the Federal Circuit Court (FCC) alleging that he is owed monies in relation to employment entitlements under a Modem Award.
4.However, the cause of action that he raises and the issues he seeks to agitate in the FCC in relation to his claim have already been considered and resolved pursuant to hearing and final determination at VCAT.[7]
[7] Weber v Carkeek (Civil Claims) [2018] VCAT 1944
5.It was found at VCAT that there was an "house/work agreement"[8] between Weber and Ewan and Lorraine Carkeek with terms to the legal effect that:
[8] Ibid. at paragraph [4]
a.Weber would live rent free in a house on the Carkeeks farm (the farm) and receive other benefits from the Carkeeks including agistment for his animals and horse feed, electricity and fuel; and
b.in consideration for the above benefits, Weber would work for approximately 20 hours work per week on the farm.
6.The VCAT decision considered and determined:
a.the identity of the parties to the house/work agreement;
b.the terms of the house/work agreement;
c.the consideration each party provided to the other in relation to the house/work agreement; and
d.consideration, by way of monies, owing in relation to the house/work agreement (wherein the money owed by Weber for occupying the house and receiving other benefits from the Carkeeks exceeded the value of the work that he had provided to the Carkeeks).
7.Weber now seeks to reopen and reagitate the issue of what he is owed by the Carkeeks for his work.
8.The Carkeeks object to Weber doing this and say that all issues in relation to compensation (in relation to consideration provided by both parties) under the house/work agreement were resolved pursuant to VCAT's findings in relation to the house/work agreement.
…
10.The Carkeek's have already been subject to Weber's claims for consideration for work that he performed for them on the farm, indeed Weber's VCAT application effectively continues by way of Weber's appeal of the VCAT decision to the Supreme Court of Victoria….”
The VCAT decision addressed (and made findings in light of) the applicant’s evidence about inter alia when he worked and for how long. The VCAT decision also made findings about the basis upon which the applicant worked (and for who) at the Berringama property as well as what he was owed[9].
[9] See paragraphs [12] to [30] of the VCAT decision
At paragraphs [5] to [17] of his submissions filed 8 August 2019, the applicant attempted to recast what went on when he worked for the respondents notwithstanding the findings in the VCAT decision.
Contrary to the claims made in the applicant’s submissions, the VCAT decision (which the applicant advised he is appealing to the Supreme Court) did address the employment of the applicant by the respondents and was not just about determining the amount of rent owing (or his management consultancy work).
Nowhere in the VCAT decision is there apparent, any objection by the applicant (who was the applicant in that matter) to VCAT exercising jurisdiction to decide the dispute over what he was owed for working for the respondents.
I accept the submissions made by the respondents on this issue at paragraphs [16]-[30] of the submissions filed on 15 August 2019 and find that res judicata operates so as to prevent the applicant from pursuing this application.
In the event that I am wrong on that conclusion, I turn to consider the other hurdles to this application on which the parties were asked to make submissions.
Given the VCAT decision, the parties were referred to Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 HCA 207 where the High Court referred to the various forms of estoppel, two of which are relied upon by the respondents in this matter. The respondents referred to paragraphs [21]-[23] of this decision in their submissions. On these issues, I accept the submissions made by the respondents that:
“34.In order to come to a conclusion in relation to who owed who under the house/work agreement, it was necessary for VCAT to find as an ultimate issues of fact the dollar values that should be ascribed to Weber's work on the farm and the benefits that the Carkeek’s provided to Webber. Once these ultimate facts had been decided it was possible for VCAT to determine the ultimate issue of law being what amounts did the parties owe each other.
35.VCAT resolved the ultimate issues of fact and law referred to above. Those issues have therefore been disposed of and Weber is not able to raise the same issues at FCC for further determination.”
Given the findings made in the VCAT decision were on almost the very same issues that the applicant seeks to propound in these proceedings, it is open to the Court to dismiss the proceedings as the doctrine of res jusdicata and issue estoppel preclude the applicant from being able to do so.
Finally, there is the question, as the respondents contended, that the doctrine of abuse of process prevents this application. The respondents’ submissions[10] referred to earlier are relevant to this question.
[10] In particular at paragraphs [39] – [45]
On this issue, the Full Court of the Federal Court in Robinson v Deep Investments Pty Ltd [2018] FCAFC 232 said:
“113.In Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, the plurality held at [24]‑[26] that the doctrine of abuse of process is informed by considerations of finality and fairness. It may be invoked in areas where estoppels apply, but is inherently more flexible. So, 'making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel'.
114.Since the decision by the primary judge, the High Court has delivered its decision in UBS AG v Tyne [2018] HCA 45, where the plurality (Kiefel CJ, Bell and Keane JJ) stated that either of two conditions enlivens the court's power to permanently stay proceedings as an abuse of process, namely 'where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute': at [1]. As to the latter, their Honours said at [45]‑[46]:
“The courts must be astute to protect litigants and the system of justice itself against abuse of process. It is to hark back to a time before this Court's decisions in Aon and Tomlinson and the enactment of s 37M of the Federal Court of Australia Act 1976 (Cth) to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the "just, quick and efficient" resolution of litigation. To insist, for example, on "inexcusable delay" as a precondition of the exercise of the power to stay proceedings as an abuse of process is to fail to appreciate that any substantial delay is apt to occasion an increase in the cost of justice and a decrease in the quality of justice. And other litigants are left in the queue awaiting justice. Further, there is no reason why the courts should tolerate attempts to manipulate other parties and the courts themselves by the deployment, by a single directing mind and will, of different legal entities under common control for such a purpose. The concern is as to whether the processes of the court are being abused. Given that this is the central concern, the circumstance that the abuse is effected by the use of multiple entities orchestrated by a single mind and will is no reason to tolerate it.
Nor does the undue vexation which a stay of proceedings is concerned to prevent arise only when proceedings in respect of the same issue have been concluded by a judgment on the merits. Serial proceedings discontinued prior to judgment would be an obvious example of an abuse of process. The pursuit of substantially the same claim by serial proceedings conducted by different entities under common control is no less obviously an abuse of process.”[11]
[11] The majority in the Full Court upheld an appeal and ordered the proceedings be dismissed as an abuse of process.
If I am wrong in the issues of res judicata, issue estoppel and Anshun estoppel, I would still dismiss the application as an abuse of process. I accept the respondents’ submission that:
“39.Weber has availed himself of the opportunity to agitate claims before VCAT, with such claims taking into account compensation that he claimed by virtue of working on the Carkeeks' farm.
40.Whilst considering oppression and the reputation and administration of justice, it is important to note that:
a.Weber's matter at VCAT ran for 6 days;
b.VCAT awarded costs against Weber on the County Court scale to cover the entire 6-day hearing;
c.In VCAT's costs judgement in relation to Weber's matter against the Carkeeks, the VCAT member was (with reference below to paragraphs of the VCAT costs decision) extremely critical of Weber for:
i. Making claims with no legal basis (paragraph 23(p));
ii. Making unmeritorious claims (paragraph 23(0));
iii. Taking up most of the hearing with failed and inflated claims (paragraph 23(p));
iv. In cross examination being repetitive and focussed on matters that were not relevant thereby prolonging the hearing (paragraph 23(g))
v. Making claims with no prospect of success.
41.It should be noted that Weber has appealed the VCAT costs judgement to the Supreme Court which will engender further time, trouble and expense for the Carkeeks in order to oppose Weber's appeal.
42Therefore, not only has Weber already agitated at VCAT the issues he wishes to agitate again before the FCC, he agitated those issues before VCAT in such a vexatious manner that that matter as run before VCAT arguable verged on an abuse of process and did result in a significant costs order against Weber.
43.Further, not content with VCAT's determinations, Weber is continuing with the matter by way of appeal to the Supreme Court.
44.As the plurality observed in Tomlinson, the doctrine of abuse of process is "inherently broader and more flexible than estoppel" and is not susceptible to a formulation which comprises closed categories.
45.Weber's application for Award entitlements, as put before the FCC by Weber, is one that should be dismissed as an abuse of process…”
It would bring the administration of justice into disrepute to allow the applicant to prosecute a proceeding in this Court concerning the same issues as were in VCAT and were the subject of the VCAT decision. The applicant’s proper course of action is to pursue the appeal in the Supreme Court as he advised that he has initiated.
With the application having been dismissed, the respondents sought costs. The applicant despite having the chance, made no submissions on this issue.
The power to order a party to pay costs under s.570(2) of the FW Act is enlivened once the jurisdictional criterion in that provision has been met (see Ryan v Primesafe [2015] FCA 8). Thus, the Court must be satisfied that:
a)the party instituted the proceedings vexatiously or without reasonable cause (i.e. in circumstances where there was no substantial or reasonable prospect of success or cause) (s.570(2)(a): Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No.2) [2015] FCAFC 97 at [13]-[14] per Logan, Bromberg and Katzmann JJ); or
b)the party’s unreasonable act or omission caused the other party to incur costs, such as by propounding arguments or leading considerable evidence, for which there was no reasonable basis (s.570(2)(b): see Shea v Energy Australia Services Pty Ltd (No 2) [2015] FCAFC 14 at [6], [10]-[11] per Rares, Flick, Jagot JJ).
The matter would appear to fall within the category of cases discussed in the authorities referred to in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No.2) [2015] FCAFC 97 at [13] to [16]. I note the Court retains a discretion and these proceedings took place in the Small Claims List.
However, given that this application has been dismissed for the reasons set out above, and that for those reasons, I am satisfied one of the exceptions referred to in the authorities on costs apply[12] and it is appropriate to make an order for costs.
[12] see decision referred to paragraph 44(a) above
The Rules provide a fixed event based scale for proceedings suitable for this Court. Rule 21.02 provides that the Court retains the discretion in relation to costs and how those costs should be calculated including in accordance with Schedule 1 of the Rules. It is open to the Court to set the amount of the costs under Rule 21.02(2)(a) as well as to set a time for the payment of costs.
In the particular circumstances of this matter a measure of estimation is required having regard to the nature of the proceedings, the operation of s.570 of the FW Act, and that the matter is not such as to warrant the Court exercising its discretion to make an order that the applicant pay the respondents’ actual costs or even a percentage of them.
Therefore, within 14 days the applicant should pay the respondents’ costs calculated as follows:
Stage 1 Initiating or opposing an application up to the completion of the first court date $2,992.00 Short mention-hearing fee (but under rule 21.02(2)(a) the whole of this amount should be waived save for $8.00) $8.00 Total $3,000.00
Conclusion
For the reasons set out above, I make the orders contained at the beginning of these reasons.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Associate:
Date: 16 September 2019
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