background
13 The applicant began employment with the Employer on 16 January 1964. He last physically attended work on 16 June 1991. On 16 March 1994 the Employer notified the applicant in writing that it considered his employment contract frustrated. The notice was in the following terms:
"As you continue to be unfit for your normal duties with us, your contract of employment with the company is frustrated. On that ground, your contract of employment with the company is now at an end, and accordingly you are no longer required to report for work."
14 On 6 April 1994 the applicant's union gave notice to the Australian Industrial Relations Commission (the AIRC) of an industrial dispute concerning the alleged termination of the applicant's employment contract. The dispute was the subject of a number of hearings before a Commissioner of the AIRC but does not appear to have been concluded by any formal order. The applicant has not complied with a direction given on 4 December 1997 that he provide a "cogent reason for the continuation" of the proceedings by 30 January 1998.
15 On 18 December 1997 the applicant lodged an application in this Court for an extension of time in which to institute proceedings against the Employer for unfair dismissal purportedly pursuant to s 170EA of the Industrial Relations Act 1988 (Cth) as then in force. In that application he alleged that his employment with the Employer was terminated on 16 March 1994. His application was dismissed on 16 October 1998 because the Court had no jurisdiction to entertain the application, as s 170EA of the Industrial Relations Act had no operation on the date the application was filed: see Kowalski v Mitsubishi Motors Australia Limited (1998) 88 FCR 55.
16 Then, on 16 October 1998, the applicant instituted further proceedings in the AIRC against the Employer pursuant to s 170CE(1) of the Workplace Relations Act 1996 (Cth) (the WR Act) for restitution and compensation in respect of the termination of his employment on the grounds that the termination was harsh, unjust or unreasonable, was motivated by discrimination, and that he had not been given written notice of the termination. On that application, he again stated the date on which the termination of his employment took effect was in March 1994. Soon after the institution of those proceedings, the applicant and Employer participated in a private mediation, resulting in the settlement of the dispute. The mediation agreement was dated 26 October 1998, one day before the applicant now claims his employment was terminated. One topic of the mediation was any entitlement the applicant had as a result of the termination of his employment with the Employer including "superannuation, sickness benefits or otherwise". The mediation agreement, as noted, clearly refers to a past termination of employment.
17 The terms of the settlement were recorded in a signed document dated 27 October 1998 entitled 'Heads of Agreement' to which the applicant and the Employer were parties (the Heads of Agreement). It is partly by reason of that mediation and the Heads of Agreement that the Employer now seeks to have the Application dismissed.
18 The Heads of Agreement records the applicant and the Employer having agreed to resolution "of all issues both current and future in dispute between them". It relevantly provides:
1. Kowalski on behalf of himself and his dependants hereby agrees to accept the sum of $200,000 in full and final settlement of any entitlements he may have to superannuation, sick leave, compensation and damages arising out of or in the course of his employment with MMAL. In particular, the said sum to be paid with a denial of liability, includes payment in full and final settlement of:
1.1 Any injuries or disabilities in respect of an eye injury in December 1986, a middle finger injury in May 1988, a back and or left leg injury in May 1989, stress or mental breakdown in August 1991 and a heart attack in December 1997
1.2 Any outstanding sick leave
1.3 Any matters related to the termination of his employment with MMAL
1.4 Any superannuation payable by the MMAL Staff Superannuation Fund.
2. The said sum of $200,000 is to be paid to Kowalski as follows:
2.1 The sum of $64,691.43 to be paid from the Superannuation Fund by way of an ill health benefit being the entitlement with respect to the period from 7 March 1970 to the date of cessation of his employment
2.2 The sum of $125,308.57 to be paid by MMAL as an ex gratia payment as compensation for permanent disability impairing his future earning capacity arising from the injuries and disabilities mentioned above
2.3 The sum of $10,000 to be paid by MMAL in consideration of Kowalski forgoing any claims or future claims in any way arising from his employment.
3. In consideration of the matters set out in paragraphs 1 and 2 above, Kowalski and his dependants agree:
4.1 Not to constitute any legal proceedings and or legal complaints with Any Court, Tribunal or body in respect of the matters set out in paragraph 1 hereof nor to join MMAL as a defendant in the Action against R J Cole & Partners and, Dowd."
Clauses 4.2 - 4.5 refer to other action agreed to be taken by the applicant. Clause 5 deals with the means by which the payment of monies payable under the Heads of Agreement were to be made. They were duly made on 9 November 1998, including the sum payable by the Superannuation Trustee under cl 2.1 of the Heads of Agreement.
19 On 23 November 1999, the applicant commenced further proceedings against the Employer in the AIRC apparently again under s 170CE of the WR Act, seeking an extension of time to do so. The grounds on which the extension of time was sought included that the Heads of Agreement were not entered into in good faith by the Employer. On 20 November 2001 the AIRC dismissed the application. The Commissioner concluded the Heads of Agreement bound the applicant not to bring the proceedings, that there was no evidence to support the assertion that the Heads of Agreement was not negotiated in good faith, and that the employment relationship between the applicant and the Employer ended on 16 March 1994 and not by any constructive dismissal on 27 October 1998. An appeal from that decision was dismissed by the Full Commission of the AIRC on 1 March 2002. It upheld the finding the applicant's employment ceased on 16 March 1994. The AIRC therefore had no jurisdiction to entertain the application, as Part VIA of the WR Act, including s 170CE, commenced and applied only to terminations of employment occurring after 30 March 1994: see Industrial Relations Reform Act 1994 (Cth) and Workplace Relations and Other Legislation Amendment Act 1996 (Cth), Sch 7, item 17(1).
20 On 24 September 1999, the applicant commenced proceedings against the Superannuation Trustee by complaint dated 20 September 1999 to the Superannuation Complaints Tribunal. Relevantly, his complaint was about the Superannuation Trustee's decision of 9 June 1999 to reject his claim for a TPDB under the Fund, following his claim for such a benefit made by letters of 19 and 24 July 1999 (the apparent lack of sequence of those events is not explained) and its alleged failure to respond to his request that it review its decision. The Superannuation Complaints Tribunal, on 23 November 2001, found it had no jurisdiction to deal with the complaint under the Superannuation (Resolution of Complaints) Act 1993 (Cth). It had notified the applicant of that position in earlier correspondence going back to 8 October 1999.
THE MOTIONS
21 The Superannuation Trustee seeks an order that the Application be dismissed on the ground that the Court does not have jurisdiction to hear the claims against the Superannuation Trustee. In the alternative, the Superannuation Trustee seeks orders that the Application be dismissed on the grounds that the Application discloses no reasonable cause of action against the Superannuation Trustee, that the proceedings are an abuse of the process of the Court, and that the proceedings against the Superannuation Trustee are frivolous and vexatious and have no chance of success.
22 The Employer contends that the applicant is estopped from prosecuting any action against it arising out of or in connection with his employment by reason of:
· his agreement that any past and future claims he may have against the Employer would be the subject of a mediation;
· his participation and conduct in the mediation held on 26 October 1998;
· the execution of the Heads of Agreement on 27 October 1998, the terms of that agreement, the acceptance by the applicant of payments referred to in it, and his subsequent discontinuance on 9 November 1998 of the proceedings against the Employer in the AIRC commenced on 16 October 1998. In the alternative, the Employer contends that the institution of the current proceedings is an abuse of the process of the Court, having regard to the terms of the Heads of Agreement.
23 It is convenient to consider first the question of whether the Court has jurisdiction to hear the proceedings against the Superannuation Trustee.
JURISDICTION
24 The Superannuation Trustee contends that the Court has no jurisdiction to entertain the claim simply because it has no jurisdiction to grant to the applicant the relief claimed against it in the Application.
25 The Application identifies the foundations for invoking the Court's jurisdiction as Part IV of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), the accrued jurisdiction, ss 298(1)(a), (b) and (c), 298L(1)(h), (l), (j) and (k), 298L(2)(a), (b) and (c) and 298U(b), (c) and (d) of the WR Act, and finally clause A.19 and section C of the Trust Deed and Rules.
26 It is obvious that the reference to Part IV of the FCA Act is erroneous. That Part deals with appeals from this Court to the High Court of Australia. It does not confer any original jurisdiction on the Court. I take the reference to be Part III of the FCA Act, which contains s 19. Section 19(1) provides that the Court has "such original jurisdiction as is vested in it by laws made by the Parliament": see Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161. In addition, where a matter is before the Court in accordance with its original jurisdiction, the Court has an accrued jurisdiction to entertain associated matters: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 (Philip Morris); United States Surgical Corp v Hospital Products International Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570 (Fencott).
27 The applicant has been unable to identify any enactment which vests in the Court original jurisdiction to entertain any of the applicant's claims against the Superannuation Trustee. Senior counsel for the Superannuation Trustee submitted there is none. The Application does not seek to challenge the ruling of the Superannuation Complaints Tribunal under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth). Nor could the applicant's present concerns fall within that provision.
28 Section 412 of the WR Act provides as follows:
"The Court has jurisdiction with respect to matters arising under this Act in relation to which:
a) Applications may be made to it under this Act; or
b) actions may be brought in it under this Act; or
c) questions may be referred to it under this Act; or
d) appeals lie to it under section 422; or
e) penalties may be sued for and recovered under this Act; or
f) prosecutions may be instituted for offences against this Act."
Section 298T enables an application to be made to the Court for orders under s 298U of the WR Act in respect of conduct in contravention of Part XA of that Act. The particular section of the WR Act identified by the applicant which is said to amount to an alleged contravention of the WR Act is s 298K(1). It relates to conduct of an employer. The Superannuation Trustee is not, and is not alleged to be, an employer of the applicant. Consequently, a jurisdictional fact upon which the Court might make orders against the Superannuation Trustee under s 298U does not exist.
29 Nor does the Court have jurisdiction to deal with the applicant's claims against the Superannuation Trustee by reason of the existence or terms of the Trust Deed and Rules. Jurisdiction cannot be conferred on the Court by agreement: Re Wakim; Ex parte McNally (1999) 198 CLR 511. The Court has not been referred to any enactment by which it is given jurisdiction generally to adjudicate between members of a superannuation fund and the trustee of the fund.
30 Subject to consideration of whether the applicant's claim against the Superannuation Trustee falls within the Court's accrued jurisdiction, in my judgment the Application against the Superannuation Trustee does not invoke any jurisdiction of the Court, and must be dismissed.
31 The Employer accepts that the Court has jurisdiction to entertain the applicant's claim against it. That must be under the WR Act. The Court has jurisdiction to entertain the applicant's claim against the Superannuation Trustee if it arises out of "a common substratum of facts" with that upon which the claim against the Employer is made, so that there is in substance one controversy: Philip Morris at 512. To the extent to which the applicant's claims against the Employer are made under the common law, they no doubt fall within the Court's accrued jurisdiction. But the relationship between the claims against the Employer and the claims against the Superannuation Trustee is nowhere near as close, and the claims do not clearly arise out of the same substratum of facts. It is not necessary for the facts giving rise to the claims against the Superannuation Trustee and against the Employer to entirely coincide: see the consideration of Mason, Murphy Brennan and Deane JJ in Fencott at 602-610. But it is necessary that the claims are in essence part of the one justiciable controversy.
32 The claims against the Employer under s 298U(b), (c) and (d) of the WR Act, based upon alleged contraventions of s 298K because the proscribed conduct was for reasons prohibited by s 298L, relevantly involves:
· the existence of the relationship of employer and employee at the times in issue,
· conduct by the Employer affecting the applicant's status or position as an employee, including the issue about the date the applicant ceased to be employed by the Employer,
· the reasons for the Employer's conduct, and
· if any of the contraventions are made out, factors as to whether the Court should make an order under s 298U.
33 In my judgment, the applicant's claims against the Superannuation Trustee do not fall within the "matter" in which the Court has jurisdiction under the WR Act. The justiciable controversy between the applicant and the Employer is quite different from that between the applicant and the Superannuation Trustee. The orders which are available under the WR Act in the applicant's claim against the Employer are distinct from those sought, and based upon different facts from those alleged, against the Superannuation Trustee. Any entitlement to such orders against the Employer would follow from a determination about when and why the applicant ceased to be employed. The claims against the Superannuation Trustee are of a different character. They depend upon the terms of the Trust Deed and Rules. In essence the claims are firstly that the applicant did not receive the benefits to which he was entitled under the Trust Deed and the Rules, whenever his employment was terminated, and secondly that the applicant became totally and permanently disabled in or from December 1997 in circumstances which, because he was then still employed by the Employer, he was entitled under the Trust Deed and the Rules to ongoing benefits for such a disability. The facts or issues common to his claims are the existence of the employment relationship, and its continuance up to 27 October 1998. There may also be an overlap to the extent that the Heads of Agreement may be relevant to the terms upon which any relief might be granted against the Superannuation Trustee. Otherwise, the legal basis for his claimed entitlements is different. The party said to be liable is different. The factual inquiries required by the Court in relation to the claim against the Superannuation Trustee involve a series of considerations different from those required in the claims against the Employer. It would be necessary to construe the Trust Deed and the Rules. It would be necessary to inquire into the nature and extent, and arguably the cause, of the applicant's claimed disability. In my view, the claims and the issues to which the claims against the Superannuation Trustee and against the Employer give rise are disparate, and they are largely independent of each other. The claims against the Superannuation Trustee are clearly severable from the claims against the Employer. The factual background of the two claims is not so dependent on common transactions and facts that they can be said to arise out of a common substratum of facts.
34 French J in Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 at [92] explained that determining the content of the Court's accrued jurisdiction is an evaluative exercise, rather than a discretionary exercise. In this matter, for the reasons I have given, I have reached the view that the claims against the Superannuation Trustee are not so related to the claims against the Employer as to fall within its accrued jurisdiction.
35 Accordingly, I consider the Court does not have jurisdiction to entertain the applicant's claims against the Superannuation Trustee, and his claims against it must be dismissed.