Circuit Court's Reasons
5 In the proceeding before the Circuit Court from which leave to appeal is sought, the applicant alleged MSS engaged in 15 contraventions of the MSS Security Victorian Enterprise Agreement 2011 and the Fair Work Act 2009 (Cth) (Reasons at [14]-[16]). The applicant alleged he was underpaid $3,099.43 as a result of the alleged breaches (Reasons at [17]). He sought to recover that sum. The applicant also sought certain declarations. The second and third respondents were, and appear to remain, employees of MSS. They are alleged by the applicant to have been 'involved in' the conduct about which the applicant complains (Reasons at [16]).
6 The primary judge upheld the respondent's application that the proceeding be stayed under rule 13.10(c) of the Federal Circuit Court Rules 2011 (Cth) as an abuse of process. The primary judge referred to the dictum of McHugh J at 286-287 in Rogers v The Queen (1994) 181 CLR 251 that abuses of process typically fall into three categories: invocation of the process for an illegitimate purpose, or in a way oppressive to the respondent, or in a way that would bring the administration of justice into disrepute. The respondents submitted that the applicant's claim was an abuse of process in the first two categories in Rogers and also sought that the applicant be declared a vexatious litigant with respect to them. The primary judge did not need to decide whether to declare the applicant vexatious, as the applicant entered an undertaking not to issue further proceedings in the Circuit Court against the respondents (Reasons at [60]).
7 The respondents claimed that the application was brought for two illegitimate purposes. First, that the applicant was advertising his personal expertise as an industrial advocate on his website, and using the application as evidence of his experience. The primary judge accepted this was occurring, though did not consider it decisive ([50]). Second, that the applicant was seeking to pressure MSS regarding its industrial practices while no longer an employee and therefore without standing. This was conduct connected to his previous application to the Fair Work Commission. This was also accepted by the primary judge ([49]).
8 The respondents also claimed that many of the 15 claims made in the Circuit Court overlapped with claims previously agitated and were therefore oppressive. These overlapping claims either had been litigated in the previous action, or could have been. The primary judge accepted this contention, though, did not cross-reference individually each claim agitated in the present proceeding against those raised in the previous proceedings. In this respect the findings of the primary judge concerning underpayment claims were "by way of example" (Reasons at [53]). His Honour found that the applicant made a forensic decision not to raise the remaining claims in the general protections claim (Reasons at [55]). He considered it not to be in the interests of justice to now allow the fresh claims to be run, for example, claim three, being a claim that a $4.40 night loading was not paid for one shift, when the sum has in any event since been paid.