Gibbs & McAllion Lloyd Pty Ltd v Kinna [1998] VSCA 52

Court of Appeal (Vic)|1998-09-30|Before: ORMISTON, PHILLIPS and KENNY, JJ.A.

Industrial Relations Law - Compensation awarded by Industrial Relations Court for termination of employment - Subsequent action for damages in Magistrates' Court - Whether proceedings should be stayed - Whether unreasonable not to raise causes of action in Industrial Relations Court - Port of Melbourne Authority v. Anshun Pty. Ltd. [1981] HCA 45; (1981) 147 C.L.R. 589 - Industrial Relations Act 1988 (Cth.) ss.170DE, 170EA, 170ED, 170EE - Magistrates' Court Act 1989 (Vic.) s.109.

The question, shortly stated, arising out of the facts set out in the judgment of Kenny, J.A., is whether the respondent was properly precluded from suing the appellants in the Magistrates' Court by reason of the principles stated in Port of Melbourne Authority v. Anshun Pty. Ltd. [1981] HCA 45; (1981) 147 C.L.R. 589. The issue which the parties said arose before the magistrate and the primary judge was whether the subject matter of the later proceeding in the Magistrates' Court was "so relevant to the subject matter" of the action heard by a judicial registrar of the former Industrial Relations Court that "it would have been unreasonable not to rely on it": at 602. The double negative is here significant because the question is not whether it would have been reasonable to take the course of relying on a particular defence or cause of action in the first proceeding, for more often than not it was then possible to rely upon the proposed defence or cause of action. The issue is whether it was unreasonable to defer reliance upon the defence or cause of action, so, if it cannot be shown to have been unreasonable not to have relied earlier on the defence or cause of action, then the principle stated by the majority in Anshun's Case will not shut out a party's later reliance on the defence or cause of action, unless some other principle of estoppel or the law can be called in aid. Only if deferring reliance can be shown to be unreasonable, will the party be shut out. Frequently there is no clear answer as to what was possible and reasonable in the earlier proceedings; sometimes it will have been technically possible for the party to have relied on a particular defence or set up a particular claim, but nevertheless it may not have been demonstrated that it was unreasonable in all the circumstances not to have relied on that defence or not to have set up the claim. The answer depends not so much on legalities as practicalities.

In the present case the appellants' argument tended to suggest that because, in one way or another, each of the claims now relied upon could have been joined in the first proceeding, then it was unfair to those defendants not to have done so. Likewise the magistrate concluded that with reasonable diligence it would have been reasonable for the respondent to pursue his additional remedies in the Industrial Relations Court. But the law is not concerned so much with hypothetical circumstances as with actual facts. Thus the question is not whether it would have been reasonable to have taken a different course but whether it was unreasonable to pursue the course that the respondent in fact took, by not then relying on the causes of action now the subject of proceedings in the Magistrates' Court. For the reasons expressed by Kenny, J.A. I do not think that such a course was unreasonable, so that the magistrate erred in holding that Anshun's Case precluded the litigation of those claims now. I do not accept everything that the learned primary judge said when the matter came on appeal. In saying that I would observe that this is again a case where no transcript was taken of the judgment or otherwise of the proceedings before a judge of the Supreme Court. It is a sad reflection on the administration of justice in this jurisdiction that no such transcript should be taken in the Supreme Court whereas we have a full transcript of the reasons of the judicial registrar who was given jurisdiction to hear claims only up to $10,000 in the Industrial Relations Court.

However, doing the best I can with such versions of the learned judge's reasons as we have, I believe he was correct in concluding that the respondent ought not to be shut out from pursuing his present claim. In brief, when the respondent's services were terminated he commenced proceedings for unlawful termination of his employment pursuant to s.170EA of the Workplace Relations Act 1996 of the Commonwealth. That is meant to provide a summary, albeit limited, remedy and, although it is conceivable that by the respondent's taking the appropriate steps at the appropriate times to have the matter heard by a judge of the Industrial Relations Court and to join each of the claims in that proceeding (or vice versa, I am not sure whether a judicial registrar had power to give directions giving leave to join claims in excess of $10,000), I do not think his behaviour in failing to do so can be characterised as unreasonable to the extent that he should now be precluded from pursuing those claims. They are different causes of action, requiring proof of different elements, albeit that the factual substratum will be largely the same; moreover at present it is by no means obvious that all facts relevant to the present proceedings were raised before the judicial registrar.

In reaching this conclusion I am accepting, as did both the parties to the present appeal, that the statement of principle appearing in the judgment of the majority in Anshun's Case (at pp.602-603) is that which should be applied here. I have already commented on the uncertain scope of the principle in Triantafillidis v. National Australia Bank [1995] V. Conv. R. para.54-536 at p.66,367. Those uncertainties are perhaps emphasised by the fact that some 200 cases reported in one way or another have referred to Anshun since it was decided.

Subject to the matters referred to in the final paragraph of the judgment of Kenny, J.A., I would dismiss the appeal.

I have had the advantage of reading in draft the judgment prepared by Kenny, J.A. on this appeal. I agree that the appeal should be dismissed and, in essence, for the reasons advanced by her Honour. As at present advised, I incline to the view that the principles of Port of Melbourne Authority v. Anshun Pty. Ltd. [1981] HCA 45; (1981) 147 C.L.R. 589 may, in the ultimate analysis, be seen to depend rather more closely than the determination of this appeal may suggest upon the possibility of judgments in conflict though not necessarily for the same cause of action. It is unnecessary to explore that possibility on this occasion because, as Kenny, J.A. has demonstrated, no matter how widely the principle in Anshun is understood its application on this occasion does not mean that the appellants succeed in this case in preventing the respondent from pursuing his claims in the Magistrates' Court. The remedy created by s.170DE(1) and following sections of the Industrial Relations Act 1988 (Cth) was, I think, intended to be expeditious and discrete, additional to and not wholly in substitution for any right, whether at common law or under another statute, to sue for conduct which is wrongful attending the termination of employment: contrast s.170ED(4) and compare Anshun at 612 per Brennan, J.

On the question whether leave was needed before the appeal could be entertained at all, I am not sure that the answer given by counsel, when the question of leave was raised without warning, was correct. To make the point plainer I refer to the parties as they were described in the Magistrates' Court, where the appellants were the defendants and the respondent in this Court the plaintiff. On what was in effect a preliminary objection to the competency of the plaintiff's claims, the defendants obtained a final order of dismissal in the Magistrates' Court. The plaintiff appealed to the Supreme Court under s.109 of the Magistrates' Court Act 1989 and succeeded. Although the judge ordered expressly only that the appeal be allowed, he plainly meant that the order made by the Magistrates' Court should be set aside and that the matter should be remitted to the Magistrates' Court for hearing and determination according to law. Accordingly, the proceeding between the plaintiff and the defendants was unfinished, the order of the judge merely allowing it to proceed according to law. When the question of leave was raised with counsel at the commencement of the hearing of this appeal, appellants' counsel referred to the judge's order as having finally disposed of the only proceeding in this Court - that is, the appeal under s.109 of the Magistrates' Court Act - but that may not be determinative.

In this connection, reference may be made to Hall v. Nominal Defendant [1966] HCA 36; (1966) 117 C.L.R. 423, especially at 442-445 per Windeyer, J. In the course of his Honour's dissertation upon the distinction between a final and interlocutory order his Honour said, at 443:-

"In most cases the test that seems to be most satisfactory, and the one that accords most nearly with what has been said on the subject in this Court, is it seems to me to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principle cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation."

See also Licul v. Corney [1976] HCA 6; (1976) 180 C.L.R. 213, Carr v. Finance Corporation of Australia Ltd. (No.1) [1981] HCA 20; (1981) 147 C.L.R. 246, especially at 255-6 per Mason, J. In Webb v. Hanlon [1939] HCA 8; (1939) 61 C.L.R. 313, Mr. Hanlon had appealed to the Supreme Court of Queensland against an order of an Elections Tribunal declaring that he was not duly elected at an election for legislative assembly. The order of the Supreme Court remitted the matter to the tribunal judge to deal with according to law, stating at the same time that the petition of Mr. Webb should be dismissed. The order of the Supreme Court was regarded as interlocutory for the purposes of appeal. In Licul v. Corney the parties, in a personal injury action in the County Court, were in dispute over service of the initiating process. Orders were made in favour of the plaintiffs at first instance and the defendant appealed as of right to the Supreme Court. The Full Court set aside the orders made below. When the plaintiffs sought to appeal to the High Court, the appeal was held incompetent for want of leave.

The two examples just given suffice to expose the problem that may have existed in the present case. But respondent's counsel did not seek to contend that leave was needed and as the matter was therefore not argued, it is better that I express no opinion on the question whether leave was needed. I am not sure that had leave been needed I would have been disposed to grant it, but the question of leave is altogether academic as all members of the Court are of the view that the appeal fails in any event.

The first appellant, Mr. Bill Gibbs ("Gibbs"), is a property-developer. In 1996, Gibbs, together with Mr. and Mrs. Lawrence McAllion, were proposing to build motel units, spa and other facilities at the Maritime Museum site in Warrnambool. The project was referred to as the `Maritime Village Development'. It was estimated that it would cost about $3 million. The second appellant, McAllion Lloyd Pty. Ltd. ("McAllion Lloyd"), was incorporated on 14 June 1996 to manage the project. Gibbs and the McAllions became shareholders and directors of the company.

The respondent, Mr. John Kinna ("Kinna"), who was a semi-retired builder, met with Gibbs in late April 1996 to discuss the project. In the course of the meeting, it was agreed that Kinna would be engaged to assist. Kinna began working as a consultant. From about 16 May 1996, however, it seems that he became an employee, first, of Gibbs and, then, of McAllion Lloyd. In late July 1996 Gibbs and Kinna quarrelled about Kinna's work and pay and, on 14 August 1996, Gibbs, on behalf of McAllion Lloyd, terminated Kinna's employment.

On 27 August 1996 Kinna lodged an application with the Australian Industrial Relations Commission under s.170EA(1) of the Industrial Relations Act 1988 (Cth) ("IRA"), for relief in respect of the termination of his employment. In accordance with s.170ED(1) of the IRA, the application was referred to the Registrar of the Industrial Relations Court of Australia. There were directions hearings in November 1996 and January 1997. On 19 and 20 February 1997, Kinna proceeded before a Judicial Registrar against Gibbs, the McAllions and McAllion Lloyd, claiming compensation under s.170EE(2) for termination of employment contrary to s.170DE(1) of the IRA. Section 170DE(1) provides:

"An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service."

The issues to be determined by the Judicial Registrar were (1) whether Kinna was an employee of Gibbs, the McAllions or McAllion Lloyd; (2) if so, whether his employment was terminated by the relevant employer; and (3) if so, whether the employer had a valid reason for terminating his employment. In a decision delivered on 21 February 1997, the Judicial Registrar found that Gibbs had agreed to pay Kinna $1,000 per week for full-time work; that upon its incorporation on 14 June 1996, McAllion Lloyd became substituted as Kinna's employer in the place of Gibbs; and that McAllion Lloyd had, without valid reason, terminated Kinna's employment contrary to s.170DE(1) of the IRA. The Judicial Registrar found that it was appropriate to order that McAllion Lloyd pay Kinna compensation representing four weeks wages at a rate of $1,000 per week, a sum of $4,000. This reflected, so the Registrar held, "the value of the chance that the applicant [Kinna] should have had to negotiate his future with the project in August had the company been acting in good faith". The Registrar went on to say:

"The company, as at the middle of August, owed the applicant $6,000 as admitted by Mr. Gibbs to the applicant, and a further $2,000 for work in the first two weeks of August. These sums are not, for reasons that did not emerge, claimed in these proceedings. They should have been."

No order was made against the company in respect of those unclaimed sums. Nor was any order made against Gibbs, it having been found that he was not Kinna's employer at the time of the termination of employment. The Judicial Registrar granted a stay of 21 days. There was no appeal.

On 14 March 1997, twenty-one days after the Judicial Registrar's decision, Kinna commenced proceeding in the Magistrates' Court, naming Gibbs and McAllion Lloyd as first and second defendants. In that proceeding, Kinna claimed, against both defendants, damages for breach of contract of employment and, against the first defendant, Gibbs, damages for misleading and deceptive conduct in contravention of s.52 or s.53B of the Trade Practices Act 1974 (Cth.) and s.14 of the Fair Trading Act 1985 (Vic.). The misleading and deceptive conduct was alleged to consist of the making of certain representations, false at the time they were made, including representations that Kinna "would be assured of ongoing employment for not less than one year and as much as 18 months" and that he "would be paid $1000.00 per week for the provision of his services and in addition would be paid telephone, car and business expenses". It was said, in particulars, that the falsity of the representations lay in the fact that Kinna did not receive the benefits promised, including the promised remuneration or ongoing employment. Damages for the alleged breach of contract were calculated by reference to unpaid wages, said to be some $8,000, and other expenses. Damages for the alleged misleading and deceptive conduct were said to be unpaid remuneration for "the period of one year at a salary of $1000.00 per week that the first Defendant promised to [the plaintiff] in the representations". It was also said that:

"The Plaintiff will give credit at the trial of the proceeding for $4000.00 already paid to him, for the $8000.00 claimed pursuant to breach of contract, and for the four weeks ordered by the Industrial Relations Court to be paid by the Plaintiff by way of damages by reference to reasonable notice."

By their defence, the defendants, Gibbs and McAllion Lloyd, alleged, amongst other things, that the plaintiff, Kinna, was estopped from maintaining his action against them in the Magistrates' Court because of the matters heard and determined in the Industrial Relations Court. This question was argued as a preliminary matter. The Magistrate upheld the defendants' submissions in a decision given on 23 June 1997, in which his Worship dismissed the plaintiff's claim on the grounds that Kinna could, with reasonable diligence, have pursued the matters sought to be raised in the Magistrates' Court in the Industrial Relations Court and that there were no special circumstances which would allow him to pursue the matter in the Magistrates' Court. On 4 July 1997, the Magistrate made an order for costs in favour of Gibbs and McAllion Lloyd fixed in the sum of $4,395.

Pursuant to s.109 of the Magistrates' Court Act 1989, Kinna appealed to the Supreme Court against that decision. On 17 February 1998, a judge of the Court made orders that:

"1. Appeal allowed with costs. 2. Costs certificate granted under the Appeal Costs Fund with certification for Senior Counsel. 3. Summaries of submissions to remain on file."

I shall not attempt to rehearse the reasons for decision apparently advanced by the judge at first instance. Whilst I have come to agree with his Honour in the result, I do so for quite different reasons.

Section 109 of the Magistrates' Court Act 1989 provides that a party to a civil proceeding in the Magistrates' Court may appeal to the Supreme Court, on a question of law, from a final order in that proceeding. A question was raised on the hearing before us as to whether an appeal lay without leave to the Court of Appeal from the decision of the judge below, allowing the appeal from the Magistrates' Court, given that the judge should have ordered, in consequence, that the case be remitted for re-hearing in that Court. Counsel for the appellants submitted that no leave was necessary because the decision of the judge below finally determined whether the Magistrates' Court was to proceed to hear and determine the claims made by the appellant in that Court. The respondent's counsel did not submit to the contrary. I had been inclined to think that the answer made by the appellants' counsel was correct, but, having read, in draft, the reasons for judgment of Phillips, J.A., I am less persuaded than before of that answer. As the question was not argued (and nothing turns on it in this case) I prefer to leave it for further consideration on another day. In any event, I should grant leave if leave were necessary.

Before us, counsel for the appellants maintained that the learned trial judge had erred in holding that the respondent, Kinna, was not estopped from pursuing the claims he sought to bring in the Magistrates' Court. This was because the proceeding in the Industrial Relations Court concerned the same parties and the same or substantially the same facts as were to be the subject of the Magistrates' Court proceeding. Thus, so counsel submitted, the claims in the Magistrates' Court could, indeed should, have been included in the earlier proceeding in the Industrial Relations Court; alternatively, it was unreasonable for the claims not to have been included in that proceeding.

I accept that, save for the claims made under the Trade Practices Act, all the claims made in the Magistrates' Court could have been brought in the Industrial Relations Court in February 1997. The authorities indicate that, by virtue of s.430 of the IRA, which is relevantly indistinguishable from s.32 of the Federal Court of Australia Act 1976 (Cth.), the Industrial Relations Court had jurisdiction to determine not only Kinna's primary claim with respect to s.170DE of the IRA but also any "attached" claims arising out of "a common substratum of facts": see Philip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 C.L.R. 457; Fencott v. Muller (1983) 152 C.L.R. 570, at 602-11; Sutton v. Sharp (1994) 125 A.L.R. 643, at 658-9; Gunnedah Shire Council v. Grout (1995) 134 A.L.R. 156, at 159. Further, the jurisdiction to determine an "attached" claim is not lost if it should later turn out that the Court had no power to deal with the primary claim, providing the primary claim is not shown to have been "colourable" in the sense that it was made for the improper purpose of "fabricating" jurisdiction: see Gunnedah Shire Council v. Grout 134 A.L.R. at 159 and Burgundy Royale Investments Pty. Ltd. v. Westpac Banking Corp. (1987) 18 F.C.R. 212 at 219.

Counsel for the appellants properly accepted that, by virtue of s.86 of the Trade Practices Act 1974 (Cth.), the Industrial Relations Court did not at the relevant time have jurisdiction to deal with matters arising under the Trade Practices Act 1974 : see Jupp v. Computer Power Group Ltd. (1994) 125 A.L.R. 669. Nothing turned on this, appellants' counsel submitted, because the claims made under that Act by Kinna against Gibbs were completely hopeless: they were made against a person who was not a corporation within the meaning of s.52 or s.53B of the Trade Practices Act and who was not, at least in the circumstances pleaded, bound by those provisions. In written submissions, counsel for the appellants submitted, in the alternative, that the Trade Practices Act claims were "redundant, as the relief claimed by the respondent under the Trade Practices Act was available to him in respect of the claims made under the Fair Trading Act". It is enough to say that, as presently pleaded, I accept that the claims under the Trade Practices Act were untenable. But, in the circumstances of this case, I do not regard this as a matter of any moment. The appeal will stand or fall by reference to the other claims made.

Accepting as I do that, save for the Trade Practices Act claims, the claims which Kinna seeks to advance in the Magistrates' Court could have been advanced in the Industrial Relations Court, is it now open to Kinna to advance those claims in the Magistrates' Court as he wishes to do? The appellants submit that he is not, because they are, so they say, entitled to the benefit of what has been called the "extended principle" of res judicata deriving from Henderson v. Henderson [1843] EngR 917; (1843) 3 Hare 100; 67 E.R. 313 as explained in Port of Melbourne Authority v. Anshun Pty. Ltd. [1981] HCA 45; (1981) 147 C.L.R. 589.

The rule of res judicata is that, generally speaking, no proceeding can be maintained on a cause of action upon which judgment has been entered. The cause of action is said to merge in the judgment, in the sense that it no longer has an existence independent of the judgment: see Blair v. Curran [1939] HCA 23; (1939) 62 C.L.R. 464, at 532 per Dixon, J.; Jackson v. Goldsmith [1950] HCA 22; (1950) 81 C.L.R. 446 at 466 per Fullagar, J. dissenting on other issues; Anshun's Case 147 C.L.R. at 597; and Chamberlain v. Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 C.L.R. 502 at 507-8_._ In Henderson v. Henderson at 3 Hare 115; 67 E.R. 319, Sir James Wigram V.C. said that the rule

"applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

This statement of principle was accepted by the High Court in Anshun's Case. The majority (Gibbs, C.J., Mason, J. and Aickin, J.) would have it that the principle as stated in Henderson v. Henderson applies against a party asserting a cause of action in a subsequent proceeding if it appears that it was unreasonable for that party to have refrained from raising the cause of action in an earlier proceeding. The majority in Anshun's Case rested their conclusion that the Port of Melbourne Authority was estopped from pursuing its claim in a second action upon the basis that "it was unreasonable for the Authority to refrain from raising its case of indemnity for disposition in the first action" : 147 C.L.R. at 604. Whilst the other members of the Court, Murphy and Brennan, JJ., agreed with the majority in the result, they did not adopt the criterion of unreasonableness. Murphy, J. based his decision on the potential for inconsistency which would arise were the second proceeding to continue. Brennan, J. concluded that the relevant cause of action had merged in the orders made in the previous proceeding, the appellant's claim to an indemnity being barred by the contribution orders in the earlier proceeding which were inconsistent with that claim.

In subsequent cases in the High Court some doubts have been expressed about the precise scope of the decision in Anshun's Case. See, generally, Chamberlain v. Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 C.L.R. 502, at 504 per Brennan, J. and 512 per Dawson, J.; Tanning Research Laboratories Inc. v. O'Brien [1990] HCA 8; (1990) 169 C.L.R. 332, at 345-6 per Brennan and Dawson, JJ., 355 per Toohey, J.; and Triantafillidis v. National Australia Bank & Anor. (1995) V.Conv.R. 54-536 at 66,367 per Ormiston, J.A. and 66,371 per Phillips, J.A. I do not pause to consider these doubts (which tend toward confining the principle to Henderson v. Henderson). This is because, even on the wider approach apparently favoured by the majority in Anshun's Case, I do not think the appellant succeeds.

Whether or not it is unreasonable for a party asserting a cause of action in a later proceeding not to have done so in an earlier proceeding depends almost entirely on the particular circumstances. It seems, however, that there are two matters which must first be established before it can be said that the failure to raise a cause of action earlier might be said to have been unreasonable. The first is that the cause of action must be one that could have been raised in the previous proceeding. For the reasons already stated, leaving aside the Trade Practices Act claims, this much is established in the present case. Secondly, it must appear that the same or substantially the same facts will arise for consideration in the second as in the first proceeding. For the purposes of this case, I assume, as counsel for the appellants submitted, that, if the Magistrates' Court proceeding continues, there will be a good deal of overlap between the evidence and the facts which fell for consideration in the Industrial Relations Court and that which falls for consideration in the Magistrates' Court. But, in my view, adopting the analysis favoured by the majority in Anshun's Case, these are necessary but not sufficient conditions for the application of the principle in Henderson v. Henderson.

In considering whether it was unreasonable in the circumstances not to raise a cause of action in earlier litigation, I do not think the notion of relevance is especially helpful. In Anshun's Case, the majority said, at 602-3, that the relevance of the matter relied on as a defence in a second action to the subject matter of the first action was indicative of unreasonableness in failing to plead the defence in the first action. I am inclined to the view expressed by Samuels, J.A in Boles v. Esanda Finance Corporation Ltd. (1989) 18 N.S.W.L.R. 666, at 674, namely, that although the notion of relevance may be helpful when considering a defence which might have been raised in an earlier proceeding, the same notion is not particularly helpful when considering the failure to advance a claim. As his Honour said " [a]ll that means is really that the passage in Port of Melbourne Authority v. Anshun (at 602) must be confined to defences."

There is at least one factor, however, which is indicative of "unreasonableness" in not asserting a cause of action in an earlier proceeding: if any judgment or order which might be made on the cause of action in the subsequent proceeding would conflict with a judgment or order in the earlier proceeding, then it will ordinarily be unreasonable to refrain from raising the cause of action in the first proceeding. In this context, the majority in Anshun's Case said, at 603-4:

"It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. ... By 'conflicting' judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction."

This factor was the most important in Anshun's Case. It also explains the outcome of a number of other cases: see, for example, Boles v. Esanda Finance Corporation Ltd. (1989) 18 N.S.W.L.R. 666, at 673 per Samuels, J.A. with whom the other members of the Court agreed; Rahme v. Commonwealth Bank of Australia (unreported, Court of Appeal, Supreme Court of New South Wales, 20 December 1991) and, at first instance, (1991) A.T.P.R. 41-089 per Bryson, J.; Bryant v. Commonwealth Bank of Australia [1995] FCA 1299; (1995) 57 F.C.R. 287, at 294, 298; and Westpoint Corporation Pty. Ltd. v. Coles Supermarkets Australia Pty. Ltd. (1996) 71 F.C.R. 584, at 592, 595. It suffices to say that in this case the respondent was not seeking to pursue any claim in the Magistrates' Court which might give rise to a judgment or order "conflicting" with the order made by the Judicial Registrar in the Industrial Relations Court. Counsel for the appellants did not contend otherwise.

Counsel for the appellants submitted, instead, that there was likely to be a related difficulty, namely, there was a risk that the findings of fact which might be made by the Magistrates' Court in the proceeding before it would be inconsistent with the findings already made by the Judicial Registrar. If this were a possibility, there may well be occasion to apply the doctrine of issue estoppel, as described by Dixon, J. in Blair v. Curran [1939] HCA 23; (1939) 62 C.L.R. 464, at 531-2. This is, however, a matter for the presiding Magistrate to decide. It does not prevent the proceeding from being pursued in the Magistrates' Court.

Whilst the likelihood of inconsistent judgments would, generally speaking, satisfy the criterion of unreasonableness, I assume for the purposes of this case that the criterion may be satisfied even when no such likelihood arises. If this be correct, then, in cases where there is no risk of inconsistent judgments, to decide whether or not it was unreasonable for a plaintiff not to litigate closely related issues in the one proceeding requires consideration of all the relevant facts, including the character of the previous proceeding, the scope of any pleadings, the length and complexity of any trial, any real or reasonably perceived difficulties in raising the relevant claim earlier, and any other explanation for the failure to raise the claim previously. As the majority said in Anshun's Case, at 603:

"... there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few."

See also Boles v. Esanda Finance Corporation Ltd. (1989) 18 N.S.W.L.R. 666, at 673; and Ling v. Commonwealth [1996] FCA 1646; (1996) 68 F.C.R. 180.

Assuming in the appellant's favour that it is appropriate to consider all relevant aspects of the proceedings, there are a number of considerations in this case which lead me to the conclusion that it was not unreasonable for the respondent to decide to pursue his statutory claim for relief under the IRA without seeking to join in the Industrial Court proceeding the claims which he now brings in the Magistrates' Court. First, on initiating his application in the Industrial Relations Commission, it was not open to him to raise any claim other than the statutory one. He could only have raised the other claims by applying to make amendment after the matter had been referred to the Industrial Relations Court pursuant to s.170ED. Whilst it seems that at some point in the hearing in the Industrial Relations Court the respondent was invited by the Judicial Registrar to amend his application, the precise scope of the amendment which was invited is unclear. Counsel for the respondent said that the invited amendment would not have covered all the claims which the respondent seeks to bring in the Magistrates' Court. This was not contradicted by counsel for the appellants. In any event, according to counsel for the respondent, had the respondent proceeded with an application to amend his claim, the Judicial Registrar would have been bound to consider an application for an adjournment by the other parties. Again, this was not contradicted by counsel for the appellants. The point was fairly made that to add further issues would have complicated and, in all likelihood, delayed the relatively straightforward and speedy adjudication of Kinna's primary claim, being a claim which, according to the relevant Rules of Court, is to be considered and determined by the Court "(a) without undue formality; and (b) with regard to the need to avoid unnecessary cost to the parties to the application": see Industrial Relations Court Rules, Order 75, Rule 2. It is presumably on this account that the matter came before the Judicial Registrar without pleadings. It is, I think, relevant to bear in mind in this regard, too, that the respondent had the benefit of s.170EDA(1), a reverse onus provision, in relation to his primary claim.

The second matter relates to the limited jurisdiction of the Judicial Registrar. By virtue of s.376(1) of the IRA and Order 74, Rule 2 of the Industrial Relations Court Rules, a Judicial Registrar may, by delegation, exercise the powers of the Industrial Relations Court only in so far as a proceeding relates to:

"(a) a claim for an amount of not more than $10,000 or such greater amount as the regulations may from time to time prescribe; or (b) a claim that the termination of an employee's employment was unlawful, or that the proposed termination of an employee's employment would be unlawful, whether because of the Act or any other law (including an unwritten law) of the Commonwealth or of a State or Territory".

At least some, if not all, of the claims sought to be made in the Magistrates' Court appear upon their face to lie beyond the powers delegated to Judicial Registrars, because they exceed the limit referred to in paragraph (a) and do not fall within paragraph (b). If this be so, it would have been necessary for the respondent not only to have joined all claims in the proceeding in the Industrial Relations Court but also to have made application to have had the proceeding referred to a Judge. Presumably there would have been some delay and additional expense attendant upon such an application. If it were not necessary to make application to have the proceeding referred to a Judge, there remained the fact that any finding by a Judicial Registrar in the respondent's favour would have been subject to appeal to a single Judge as a hearing de novo: see IRA, s.377 and Wyndham Lodge Nursing Home Inc. v. Reader (No.2) (1996) 65 IR 253, at 258.

Finally, I think it is relevant to bear in mind that s.347(1) of the IRA provides that:

"A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause."

By virtue of s.347(2) costs includes "all legal and professional costs and disbursements and expenses of witnesses". A provision of this kind is well suited to a proceeding for statutory relief of the kind made by the respondent which is to be conducted "(a) without undue formality; and (b) with regard to the need to avoid unnecessary cost to the parties ... ": Industrial Relations Court Rules, Order 75, Rule 2. It may, possibly, work an injustice in other circumstances. The respondent was entitled to bear in mind that he would not have secured payment of his costs in relation to matters within the accrued jurisdiction of the Court, even if successful and even if those matters added to the length and expense of the litigation: see Bostik (Australia) Pty. Ltd. v. Georgevski (No.2) (1992) 36 F.C.R. 439 and Townsend v. Australian Information Media Pty. Ltd. (1997) 78 I.R. 321.

Accordingly, for the reasons set out above, I am not persuaded that the judge below erred in result. It should, I think, be borne in mind that whilst the principle discussed in Anshun's Case is designed to foster public and private interests by encouraging parties to advance all their related claims or defences at the one time, thereby diminishing unnecessary duplication of curial and other effort, it seeks to meet these objectives by terminating a litigant's right to have a court adjudicate upon the merits of a claim. It is, I think, on this account that the principle is to be applied only in the clearest of cases.

The judge below allowed the appeal from the Magistrates' Court. The orders made below did not, however, include orders setting aside the order of that Court and remitting the case for hearing and determination by it. Although I have concluded that his Honour was correct in result, I should allow the appeal to the extent necessary to remedy that deficiency.

Court of Australia Act 1976

At a glance

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Before

Source

Judgment (53 paragraphs)

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Legislation Cited (12)

Cases Cited (1)