McDonald v State of South Australia

IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 178 of 2010

JUDGE: BESANKO J DATE: 31 MARCH 2011 PLACE: ADELAIDE

INTRODUCTION 1 This is an application by notice of motion by the respondents to a proceeding in this Court for orders setting aside the originating process or dismissing or staying the proceeding. The orders are sought pursuant to O 9 r 7 or O 20 r 5 of the Federal Court Rules. For present purposes it is sufficient for me to refer to O 20 r 5 which provides as follows: (1) This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding: (a) the proceeding or claim is frivolous or vexatious; or (b) the proceeding or claim is an abuse of the process of the Court. (2) The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief. (3) The Court may receive evidence on the hearing of an application for an order under subrule (2). 2 The first respondent, the State of South Australia, entered a conditional appearance on 3 December 2010 and filed its notice of motion within 14 days of that date. A Notice of Appearance was filed by the second to sixth respondents on 6 January 2011. At the hearing the applicant appeared in person. The respondents were represented by the Crown Solicitor. 3 The applicant's Statement of Claim alleges a number of causes of action against the six respondents, including breaches of implied terms of his contract of employment, breaches of a duty of care in tort, breaches or contraventions of the Trade Practices Act 1974 (Cth) ('the Trade Practices Act'); breaches of the Workplace Relations Act 1996 (Cth) ('Workplace Relations Act'); and an 'action' under the Workers Rehabilitation and Compensation Act 1986 (SA) ('the Workers Rehabilitation and Compensation Act'). The Statement of Claim also alleges the existence of a number of obligations on the respondents which do not amount to recognised causes of action (paragraphs 189, 328, 422, 433, 556, 709, 713, 725, 786 and 843). These include a 'failure to provide the Plaintiff his basic human right to procedural fairness, due process and natural justice' under the Workplace Relations Act, and 'an implied term of mutual trust and confidence in the Occupational Health and Safety Act 1986 between managers and workers' asserted against several of the respondents. 4 The applicant has previously brought an action in the Supreme Court of South Australia, and it is this action and the result of it which is said by the respondents to give rise to grounds for summary dismissal or a stay of the proceeding. The respondents submit that the applicant is precluded from bringing the present action by some combination of the application of the doctrines of res judicata, issue estoppel, and Anshun estoppel, or, notwithstanding (if it be the case) that the respondents cannot make out the technical requirements for the operation of those doctrines, that the proceeding should be dismissed or stayed on the basis that it is an abuse of process by way of attempted relitigation of a dispute already judicially determined: see Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 ('Spalla') and Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 ('Rippon'). 5 For the purpose of the application, the respondents rely on two affidavits of Ms Loretta Condoluci, who has the conduct of this proceeding on behalf of the Crown Solicitor, sworn on 14 December 2010 and 5 January 2011 respectively, and an affidavit of Mr Stephen Calvert sworn on 6 January 2011. Mr Calvert is responsible for the management and appointments of teachers and ancillary staff in all Department of Education and Children's Services schools throughout South Australia. 6 The applicant relies on his own affidavit of 24 December 2010 and on a document entitled 'Applicant's Outline of Submissions' which sets out a number of factual matters. The applicant also forwarded documents to the Court after the hearing. He did not have leave to do so. Nevertheless having regard to the fact that he is unrepresented and the nature of the application I have considered the documents. 7 Ms Condoluci's affidavit of 14 December 2010 annexes, among other documents, the judgment at first instance of the Supreme Court in the applicant's action (McDonald v State of South Australia (2008) 172 IR 256) and the judgment of the Full Court of the Supreme Court on the appeal (State of South Australia v McDonald (2009) 104 SASR 344).

BACKGROUND 8 I now set out a general summary of the factual matters which arose in the Supreme Court. The summary is based on the findings made by the trial judge as varied or modified by the Full Court on the appeal (see in particular the reasons of the Full Court at [27]-[103] and [140]-[178], [295]-[379]). 9 The applicant was first employed as a teacher with the South Australian Department of Education and Children's Services ('DECS') in 1990. On the hearing of this application the applicant made a number of submissions regarding the precise identity of his employer and I will come back to that topic. 10 The applicant had previously worked as a teacher in Scotland, with qualifications in teaching business education and economics. He had experience with word processing but not with computing generally. 11 In 1996 the applicant was appointed to Mount Barker High School, where he was asked to take on the role of network manager of the school's computing systems, in addition to his teaching load. The role involved repairing and maintaining computers and other equipment. This was not work for which the applicant was qualified and he found it stressful. His workload affected the applicant's health adversely. Over the course of several conversations, the applicant informed Mr Boaden, the second respondent, who was then the Assistant Director of Personnel with DECS, about the difficulties he was experiencing. Mr Boaden was aware that Brighton Secondary School needed to fill the position of Coordinator of Information Technology and a Year 12 Computing teacher. The applicant was appointed to teach computing to Year 12 and mathematics to Year 11 at Brighton High School for the following year. 12 At Brighton Secondary School, the applicant took on similar duties to those he had performed at Mount Barker, including managing the computer network. This was in addition to his teaching load. Ms Schupelius, the third respondent, was then the principal of Brighton. In April 1997 the applicant was appointed Acting Coordinator of Information Technology Across the Curriculum ('Co-ordinator'), and was confirmed in this position for a five-year term from January 1998 to January 2003. There was a reduction in his teaching hours, but the applicant continued to find it difficult to manage his workload. Ms Schupelius was aware of this and engaged Mr Crompton to help the applicant on a part-time basis. The applicant's teaching load was further reduced. 13 The applicant continued to be assisted with his workload by Mr Crompton, and later by his son, Damien McDonald, on a part time basis. The trial judge found that things proceeded 'reasonably well' for the remainder of 1998 to the end of 1999. A new computer network was installed at Brighton at the beginning of 2000 and a number of second-hand computers, requiring considerable work in order to make them suitable for the school's use, were purchased throughout that year. The applicant undertook that work and found it time-consuming. In late 2000 a part-time School Services Officer was employed to assist the applicant with the task. The trial judge found that Ms Schupelius was aware that the applicant continued to work long hours, and was not qualified for the work that he had undertaken. She offered to further reduce Mr McDonald's teaching hours but the offer was refused. 14 In late 2000 and early 2001, the applicant began to fear that he would not be reappointed as Co-ordinator in January 2003. In January 2001 the applicant wrote to Ms Schupelius resigning from his employment on the basis of his 'impossible work situation' but this resignation was not treated as effective. 15 As a result of the letter a meeting was held on 29 January 2001 between the applicant, Ms Schupelius, and Ms Cochram, the fourth respondent, who was at that time the District Superintendent. Ms Cochram understood the applicant to be raising a grievance with her, and the applicant's workload, his difficulties with another staff member, and the information technology situation at Brighton were all discussed. A follow-up meeting occurred on 7 February 2001 and it was agreed that the applicant would no longer provide technical support for the computing network at Brighton but instead concentrate on his role as Coordinator. Ms Schupelius had the responsibility of informing staff at Brighton about the change in the applicant's duties. At these meetings the applicant also raised the issue of his tenure at Brighton and Ms Schupelius indicated that she thought that he had a ten-year tenure but was not sure. Ms Schupelius left Brighton to take up an overseas appointment some days afterwards and staff at Brighton were not informed of the change to the applicant's role. Ms Cochram did not follow up the applicant's grievance to ensure that the agreements had been implemented and did not inform the Acting Principal, Mr Potts, of the agreement. Mr McDonald did not seek a further meeting with Ms Cochram. 16 As a result the applicant continued to be asked by other staff to assist with matters which were no longer his responsibility. The applicant raised this with Mr Potts, but nothing was done to resolve the issue. In early 2001, the applicant also complained to Mr Potts that he was being bullied, victimised, and harassed by other staff. He raised with Mr Potts the issue of his tenure, which Mr Potts referred to Ms Cochram, but Ms Cochram did not respond. 17 In July 2001, the fifth respondent, Mr Mitchell, was appointed Principal at Brighton. In October 2001, the applicant wrote to Mr Mitchell raising his concerns regarding who was responsible for the computer network, and his problems with other computing staff. A meeting was held shortly after involving Mr Mitchell, the applicant and other staff at which the applicant became extremely angry. The applicant apologised to Mr Mitchell and there were no further unpleasant meetings until June 2002. As a result of that meeting, it was made clear to Mr McDonald, to his satisfaction, that he was not responsible for the other computing staff. The harassment seems to have ceased from October 2001. By that time, a number of Mr McDonald's functions as network manager had been taken over by technicians employed at Brighton. 18 In May 2002, the applicant's position as Co-ordinator at the school was reviewed. The position was subsequently redefined in such a way as to make it unlikely that the applicant would be the successful applicant. The Full Court noted that the trial judge did not make a finding that this was done deliberately so as to remove the applicant from Brighton but that the trial judge did find that Mr Mitchell was aware this would likely be the consequence of the redefinition. The Full Court rejected the trial judge's findings that this had been 'inappropriate and unfair' and that the decision not to interview Mr McDonald was 'attributable to a desire to "get McDonald out of Brighton"' on the part of Mr Mitchell (at [162]). The position was advertised and was to be taken up from January 2003. The applicant applied for the position but a three-person panel, composed of Mr Mitchell, Ms Groves, who was a co-ordinator at Seacliff High School, and Ms Sara, a teacher at Brighton nominated by the Australian Education Union's Brighton sub-branch, elected not to interview him for it. The applicant was informed of this in late June 2002, and complained to Ms Hyde, the sixth respondent, who was now the District Superintendent. 19 The applicant was greatly upset at the failure to interview him for the position and there was an angry confrontation with Mr Mitchell. From July 2002 to September 2002 the applicant took sick leave on the basis that he was suffering from a 'stress/anxiety disorder'. He returned to work for a brief period in late September 2002. At that time Mr Mitchell informed the applicant that he was obliged to complete a DECS Placement Form to arrange appointment to another position, and the applicant refused to do so on the basis that he had a ten-year appointment at Brighton. Mr Mitchell informed the applicant that he would complete the form himself and did so. In July 2002 the applicant telephoned Ms Hyde and informed her that he was initiating a grievance procedure. Ms Hyde did nothing to address the applicant's grievances. He subsequently lodged a written grievance in October 2002. Ms Hyde forwarded this to the Legal Department within DECS but took no other step. 20 From October 2002 to December 2002 the applicant took further sick leave for his stress and anxiety disorder. After that time he did not return to Brighton or to any other school. On 18 December 2002, the applicant made a claim for compensation under the Workers Rehabilitation and Compensation Act. As a result he was provided with rehabilitation services by DECS and two positions were offered to the applicant in other schools. However, he subsequently withdrew his claim before it could be determined. In April 2003 the applicant wrote to the Pay Section of DECS, and to the Premier of South Australia with a copy to the Director-General of Education, informing them that he was treating himself as dismissed from his employment.

THE Action in the supreme Court of south Australia 21 The applicant brought an action in the Supreme Court in April 2004. DECS was named as the defendant, but in August 2004 the State of South Australia was substituted for it. The applicant's Statement of Claim was amended a number of times.

Strike out application 22 A Master of the Supreme Court heard an application to strike out various parts of the further amended statement of claim (the eighth): McDonald v State of South Australia (Judge Lunn, unreported, 25 July 2007). The Statement of Claim at that time included a claim that DECS had contravened ss 51AB, 51AC, 60 and 82 of the Trade Practices Act. The Master struck out these paragraphs on the basis that the plaintiff had no cause of action under that Act because DECS was not a body corporate, but a body politic within the meaning of s 22 of the Acts Interpretation Act 1901 (Cth). 23 The Master also struck out a claim for non-economic loss on the ground that s 54(1) of the Workers Rehabilitation and Compensation Act provided that an employer was not liable for a compensable disability except under the Act. His Honour noted that in all the circumstances pleaded the defendant was the plaintiff's employer, and said while the plaintiff's claim for constructive wrongful dismissal was maintainable, he was barred by s 54(1) from maintaining a claim for physical or mental injury arising out of his employment. The applicant sought to raise this issue before the Full Court, and the Full Court noted that there had been no appeal from the Master's decision and in any event the Master and the trial judge, who had dealt with an application to amend in similar terms, were correct in rejecting the claim (at 418 [399]-[401]). 24 A claim by the applicant in relation to a contravention of s 55A of the Occupational Health, Safety and Welfare Act 1986 (SA) was also struck out, on the basis that the section conferred jurisdiction on the Industrial Commission in cases of bullying, but did not give rise to a cause of action in the Supreme Court. 25 A paragraph relating to the applicant's (then plaintiff) claim in deceit and claiming the applicant was affected in his 'social status and personal satisfaction' was also struck out on the basis that such heads of loss are not claimable for deceit. Paragraphs purporting to bring a claim for 'harassment' in common law were struck out, there being no such cause of action. 26 The time within which the applicant could appeal from the Master's decision was extended to 14 days from 17 August 2007. The applicant did not appeal the decision within that time, although he raised the issue with the trial judge at a directions hearing in late August 2007. The trial judge told the applicant that in order to challenge the decision he would need to file an appeal, but no appeal was ever filed, and the time for doing so had passed by the commencement of the trial (trial judge's reasons at 333 [448]).

The judgment at first instance 27 The matter proceeded to trial in late 2007. The remaining causes of action were breach of contract, estoppel, and deceit. The contract claim was for breach of three terms said to be implied in the applicant's contract of employment: first, a term that neither party to the employment contract would act in a manner that would destroy or seriously damage the relationship of trust and confidence between them; second, a term that his employer would take reasonable care to provide a safe place of work and safe systems of work; and, third, a term that the Minister would exercise his powers in relation to the applicant fairly and reasonably. The estoppel related to the failure to pay alleged agreed rates of overtime and to reimburse for additional work performed. The deceit was said to arise in relation to the information given by Mr Boaden to the applicant about the nature of the duties the applicant would be performing at Brighton. 28 In the course of the trial the applicant had applied for permission to amend his Statement of Claim to claim damages for non-economic loss for pain and suffering, loss of dignity and reputation, and loss of enjoyment of lifestyle and for psychiatric injury. The trial judge refused permission to amend the pleading, and the Full Court dismissed the applicant's appeal against that decision (at 418 [400]). 29 The trial judge found that the State was in breach of the first and second alleged implied terms, and that the applicant had been constructively dismissed. He rejected the claim for damages for deceit, finding that the elements of the tort had not been established because there had been no false representation. The trial judge did not deal with the issue of estoppel, but the Full Court noted (at 368-369 [114]) that there was no doubt that damages were not claimable by reference to estoppel. The trial judge also rejected a claim for aggravated and exemplary damages. He awarded damages in the amount of $392,850.00 for loss of earning capacity, superannuation entitlements and long service leave entitlements.

The judgment of the Full Court 30 The State appealed against the trial judge's decision. The applicant cross-appealed on various grounds. 31 The State raised for the first time on appeal a submission that the applicant's claim for breach of contract was barred by section 54(1) of the Workers Rehabilitation and Compensation Act. The Full Court rejected the submission, finding that even if the applicant had suffered a compensable disability, the relationship between the compensable disability and the alleged repudiatory breach of contract lay only in the fact that the conduct amounting to the repudiatory breach had also caused the compensable disability. The liability in contract did not depend on the existence of the compensable disability and accordingly the applicant was not precluded from bringing the contractual claim, notwithstanding that he remained entitled to bring a claim under the Workers Rehabilitation and Compensation Act, as he has since done. 32 The Full Court nevertheless allowed the appeal, finding that there was no implied term requiring the State not to damage seriously or destroy his relationship of mutual trust and confidence with the applicant. This was because the extensive statutory regulation of the applicant's employment contract, which provided a process for addressing his grievances, rendered the implication of such a term unnecessary. The Court also found that even if such a term was implied into the applicant's employment contract, it had not been breached in a repudiatory way because of the availability to the applicant of grievance resolution processes within the confines of the employment relationship. In relation to the implied contractual duty of care, the Court held that any breach was not repudiatory, because the issues of the definition of the applicant's role at the school, his workload, and harassment by other staff had been resolved well before the applicant terminated his employment; and because it had upheld certain challenges to factual findings made by the trial judge which supported the finding that there had been a repudiatory breach. It further considered that the conclusion that the applicant had been bullied and victimised by Mr Mitchell and excluded from committee participation was not supported by the evidence and could not amount to a breach of the duty. Nor did any breaches cumulatively amount to a repudiatory breach of the employment contract. 33 On the appeal, the applicant also sought to bring a negligence claim against those employees of DECS who are named in the present proceeding as the second to sixth respondents. He said that the prohibition in s 54(4a) of the Workers Rehabilitation and Compensation Act on bringing actions for negligence against fellow employees did not apply because that section did not prohibit such actions where the negligence arose through 'serious and wilful misconduct'. In relation to that claim, the Full Court said (at 419 [415]): The reference to 'serious and wilful misconduct' suggests that Mr McDonald claims to have a right of action against other workers for a compensable disability, the claim being attributable to negligence of other workers that arose from or in the course of 'serious and wilful misconduct'. Section 54(4a) does not bar a right of action against another worker if the disability is caused by the negligence of that worker and the negligence arose from or in the course of serious and wilful misconduct by the worker. If this right of action against another worker was to be maintained, in our opinion it should have been clearly pleaded and that would necessitate the naming of the other worker or other workers and, we consider, their joinder as a further party or parties. None of this occurred. In our opinion it is now too late to raise this matter in these proceedings. 34 An application by Mr McDonald for special leave to appeal to the High Court was refused: McDonald v State of South Australia [2010] HCATrans 25 (12 February 2010).

THE PROCEEDING In this court 35 The applicant now brings an action in this Court naming the five individual respondents referred to above, in addition to the State of South Australia. The Statement of Claim contains allegations in support of the causes of action referred to in [3] above. It refers to both the Minister for DECS ('the Minister') and the Director-General of Education ('the Director-General') as the applicant's employer. The applicant alleges that the actions of the five individual respondents which he claims caused him damage were outside the course of their employment because they were 'serious and wilful acts of misconduct' for the purpose of s 54(4a) of the Workers Rehabilitation and Compensation Act, and that therefore he can bring an action against them (paragraphs 205, 345, 419, 422, 552, 705, 725, 782 of the Statement of Claim.)

Res judicata 36 The doctrine of res judicata operates to prevent parties from re-litigating causes of action which have already been the subject of a judicial decision. A party relying on the doctrine of res judicata must establish that a Court with the relevant jurisdiction has already given judgment on the cause of action raised in the later litigation. The claim or cause of action is said to have merged in the judgment and no longer to have an independent existence: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597 ('Anshun'). This doctrine operates only where the parties to the first action are the same as the parties to the second action: Ramsay v Pigram (1968) 118 CLR 271 at 276 ('Ramsay v Pigram'). The parties must be suing or being sued in the same right or capacity: Leggott v Great Northern Railway Co (1876) 1 QBD 599. The parties will be considered to be the same where they share a privity of interest, defined by Sir Robert Megarry VC in Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 as 'a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party' (at 515). In Ramsay v Pigram, Barwick CJ said that to establish privity of interest 'the privy must claim under or through the person of whom he is said to be a privy': at 279.

Issue estoppel 37 Issue estoppel arises where a party, for the purpose of a claim or cause of action, alleges or denies the existence of facts which were necessarily decided by a prior judgment. That is, a party will be estopped from re-arguing questions of fact or law decided in a previous case, even though the cause of action in the subsequent case has not been determined, so long as the findings of fact or law were a necessary ingredient in the determination of the previous cause of action: Anshun at 597-8. Ordinarily issue estoppel will arise only in a subsequent action between the same parties, but in Arthur JS Hall & Co v Simons [2002] 1 AC 615 Lord Hoffman considered that issue estoppel may extend to situations where the parties to the subsequent proceeding are not the same as the parties to the earlier proceeding, but the circumstances are such as to bring the parties within the spirit of the rules (at 701).

Anshun estoppel 38 Parties are not permitted to litigate issues which could and should have been litigated in earlier proceedings between them: Henderson v Henderson (1843) 67 ER 313 ('Henderson'); Anshun. In Henderson, Sir James Wigram VC said (at 320) that: Where a given matter becomes the subject of litigation in and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata 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 judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. 39 In Anshun the High Court said that where a matter relied on as a defence in a second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it, the party will be estopped from raising it as a defence in the second action: at 602. There must be a close connection between the subject matter of the first litigation and the second, such that it would be expected that the matter would have been raised in the first litigation. 40 In Spalla, French J (as his Honour then was) referred to Anshun estoppel as an analogical extension of the doctrines of res judicata and issue estoppel (at [59]).

Abuse of process by relitigation 41 The doctrines set out above have a number of technical requirements. The Court's jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of is not limited to cases where those technical requirements can be made out: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ ('Walton'); Rana v University of South Australia [2008] FCA 1903 at [43]. The operation of the doctrines of res judicata, issue estoppel and Anshun estoppel is subsumed into the Federal Court's implied incidental power to prevent abuse of its processes: Spalla at [59]. Justice French said in Spalla (at [66]) that: the doctrines of res judicata, issue estoppel, and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted relitigation of a dispute already judicially determined. In Walton Mason CJ, Deane and Dawson JJ said (at 393) that: … proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. 42 The power to strike out a claim is to be exercised sparingly and 'upon an examination of the relevant circumstances of the particular case before the Court: Spalla at [70]. 43 In State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (at 64,089) ('Stenhouse'), Giles CJ set out a list of relevant matters in determining whether it would be an abuse of process if a party were allowed to litigate an issue already raised in previous proceedings: (a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary or an ultimate issue; (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of - (f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process. In Spalla, French J described this list as a non-exhaustive one (at [70]). 44 The parties need not necessarily be the same for the proceedings to be permanently stayed as an abuse of process. 45 In a case bearing some similarities to the present, R v Lessur-Millar (1990) 47 A Crim R 111, Lockhart J said (at 117-118): For this Court to allow the present matter to proceed and to consider granting the relief sought by the applicant would be to lend its aid to a further investigation of the very matters which have been fully considered by judges at first instance and on appeal in New South Wales and, though a special leave application and not the hearing of a substantive appeal, by the High Court. No fresh evidence of any probative kind has been placed before the Court additional to what was before the New South Wales courts. It is vexatious and an abuse of process for a party, having sued unsuccessfully before the courts of New South Wales, to seek to agitate the very same issues and facts in this Court. The proceedings, remedies and parties are not precisely identical; but they are in all essential respects the same 46 There are a number of cases dealing with the category of abuse of process by relitigation. For present purposes it is sufficient for me to refer to SZJAB v Minister for Immigration (2008) 168 FCR 410 at 423 per French J and Rippon, in addition to the cases to which I have already referred.

Untenable claims 47 A claim or cause of action may be so obviously untenable that the continued pursuit of the claim or cause of action is vexatious or an abuse of process or both: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ; Cox v Journeaux [No 2] (1935) 52 CLR 713 at 720 per Dixon J (as his Honour then was). 48 I have decided this application by reference to the doctrines of res judicata, issue estoppel, Anshun estoppel and abuse of process by relitigation. Nevertheless at least as to some of the claims the order would also be sustained on the basis that the claim is obviously untenable. 49 I now turn to consider whether the applicant's claims against each of the six respondents is barred by any of the doctrines of res judicata, issue estoppel, Anshun estoppel, or abuse of process by relitigation.

The applicant's claims against the State of South Australia 50 I will start by examining the claims against the first respondent on the basis that it is the same party as the defendant in the Supreme Court action.

The claims for breach of implied terms of the contract of employment 51 The claims for breach of implied contractual terms of a duty of mutual trust and confidence and a duty of care were determined in the Supreme Court action and the doctrine of res judicata precludes any further proceeding based on these claims. In so far as the applicant pleads the implied terms in this proceeding in different terms to the two implied terms, they do, despite the different expressions used, amount to one or other of the two terms. In so far as they do not the applicant is precluded from raising them by Anshun estoppel.

The claim for a breach of a duty of care in tort 52 In his Statement of Claim in this proceeding the applicant claims various types of loss and damage. The types of loss and damage claimed can be put into two broad categories, viz loss of salary and other entitlements and loss associated with physical or mental harm. It is difficult to see how the first category of loss or damage can be said to have been caused by a breach of a duty of care in tort even if there was such a breach. In any event, neither category of loss or damage can give rise to a liability in the first respondent because of the provisions of s 54(1) of the Workers Rehabilitation and Compensation Act. That subsection provides that no liability attaches to an employer in respect of a compensable liability except under the Act. It seems to me that this subsection would preclude the applicant's proposed claim for breach of a duty of care in tort against the first respondent. In this respect I would respectfully agree with the reasoning of the Full Court about the operation of s 54(1) (at 378-383[180]-[205], 418[400]-[401] especially at 381-382[196]-[198]. 53 However, I will not decide the application on this ground. I will decide it by reference to one or other of the doctrines of res judicata, issue estoppel, Anshun estoppel and abuse of process by relitigation. 54 The matters to note about the Supreme Court action are as follows. First, the case was decided by reference to the two implied contractual terms. Secondly, there was an attempt by the applicant to claim damages for non-economic loss. That attempt failed and Master Lunn struck out the relevant pleading and a proposed amendment was disallowed by the trial judge (at 333-336 [450]-[468]). There was no appeal from the Master's decision and the Full Court upheld the trial judge's decision (at 418[401]). In so far as the proposed claim for non-economic loss in the Supreme Court action was based on a duty of care in tort (see the trial judge's reasons at 335[462]) it may be said that a second claim in tort is precluded by the doctrine of res judicata. Thirdly, the duties said to fall under the rubric of a duty of care in tort appear to be the same duties litigated in the Supreme Court action under the rubric of the alleged contractual duty of care. The Full Court said that the content of the implied contractual duty of care was the same as the duty of care in tort (at 399[279]) and the Court found that the Minister had not acted in breach of an implied contractual duty of care (at 416 [387]). It seems to me that in those circumstances if the applicant is not precluded from making this claim by the doctrine of res judicata he is precluded from making the claim by the doctrine of issue estoppel. 55 Even if I am wrong about the doctrines of res judicata and issue estoppel, the Anshun extension would preclude the claim in tort. Plainly the applicant can be reasonably expected to have brought such a claim in the Supreme Court action.

The claims under the Trade Practices Act 56 As I have said, the claim under the Trade Practices Act was struck out by a Master of the Supreme Court. That decision was not the subject of an appeal (see Full Court's reasons at 418 [406]-[407]). There was no debate before me as to the application of the doctrines of res judicata or issue estoppel to what appears to be an interlocutory judgment. I do not need to discuss this issue because it seems to me that on any view the attempt to raise the provisions of the Trade Practices Act is an abuse of process by relitigation. In so far as the applicant relies on the Fair Trading Act 1987 (SA) that is precluded by the Anshun extension. 57 In addition, the claim under the Trade Practices Act is obviously untenable. 58 Section 2B of the Trade Practices Act provides that Part IV of the Act (among other provisions) binds the Crown in right of each of the States 'so far as the Crown carries on a business, either directly or by an authority of the State or territory'. This section operates notwithstanding that the Crown is not a constitutional corporation, by reason of the Competition Principles Agreement and the Conduct Code Agreement between the Commonwealth and the States. However, the operation of DECS does not constitute a business. In Hope v Bathurst City Council (1980) 144 CLR 1, Mason J said that a business is comprised of 'activities undertaken as a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis' (at 8-9). The employment of teachers and the administration of schools does not constitute a business. It is the performance of a traditionally governmental function. 59 With respect to other sections of the Trade Practices Act not specifically referred to in s 2B, the Crown in right of each of the States is not bound by them where there is no express or implied intention that they shall be bound: Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107; Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1 at 28[43]). This includes the sections referred to by the applicant in his Statement of Claim.

The claim under the Workplace Relations Act 60 The claim under the then Workplace Relations Act was not pleaded in the Supreme Court but it is apparent from the trial judge's reasons for judgment at 346[536] that the applicant made a submission during the trial that the requirement to perform lunch duty contravened s 607 of the Act. The trial judge rejected the submission, relying on s 608 of the Act which provided that where an employee's employment was regulated by an award, workplace agreement or industrial instrument, s 607 was displaced. The Full Court found (at 396-397 [262-266]) that the applicant's employment was regulated by such an instrument. Claims in relation to the Act were not raised on the appeal. In that case any claim under the Workplace Relations Act has merged in the judgment of the trial judge and the doctrine of res judicata applies. 61 I would add that for the reason identified by the Full Court, the claim is obviously untenable.

The claims in relation to the Workers Rehabilitation and Compensation Act 62 From the Statement of Claim it appears that the applicant considers that he has a cause of action arises under the Workers Rehabilitation and Compensation Act. This is not the case. Speaking generally, the Act bars actions for negligence against employers in respect of compensable disabilities and provides for certain exceptions to that bar. I have already referred to the applicant's attempts to claim non-economic loss in the Supreme Court action.

Other claims 63 The plaintiff also refers to failures to implement the Equal Opportunity Act 1984 (SA), the Occupational Health, Safety and Welfare Act 1986 (SA) and the Education Act 1972 (SA). These are not expressed to be causes of action.

The applicant's employer 64 The applicant claims in the proceeding that he was owed duties by the Minister for Education and the Director-General of Education. In relation to the argument on the present application the applicant argued that his employer was the Director-General or DECS. He argued that the Minister was vicariously liable for their conduct and an action against the Minister was not precluded by s 54(1) of the Workers Rehabilitation and Compensation Act because the Minister was not his employer. It appears that the applicant raised the identity of the employer to overcome the difficulties as he perceived them with s 54(1). 65 The Full Court found that the applicant was appointed to the position of officer in the teaching service by the Minister and that it was unnecessary for it to determine whether his employment contract was with the Minister or the Crown (at 348-349 [2]). There is no reason to doubt the correctness of that finding. The applicant's arguments to the contrary seemed to be based on later amendments to the Education Act 1972 (SA). In any event, it seems to me to be fairly arguable that for the purposes of the doctrine of res judicata the relevant party is the Crown or State of South Australia and that party is the same in both cases. Furthermore, there are two other reasons why this contention does not advance the applicant's case. First, as I have said, the issues of breach have been decided against the applicant and, irrespective of the precise identity of his employer, his claims are bound to fail. Secondly, any issue about the precise identity of the applicant's employer properly belonged to the Supreme Court action.

THE INDIVIDUAL RESPONDENTS 66 The individual respondents were not parties to the Supreme Court action. However, all five were called as witnesses in the Supreme Court proceedings. The trial judge made findings in relation to their credibility and their respective roles in the relevant events. The factual basis for the applicant's claims against the individual respondents in the present proceeding is the same as that dealt with by the trial judge and the Full Court in the Supreme Court action in relation to the breach of contract and deceit issues. 67 It seems to me that the claim against the individual respondents is an abuse of process by relitigation. I do not need to consider whether the claim is in fact precluded by the Anshun extension to issue estoppel even though the individual respondents were not parties to the Supreme Court action (see the discussion in Heydon J D, Cross on Evidence (8th Australian ed, LexisNexis Butterworths, 2010) at pages 260-263 and the cases in footnote 210). Nor do I need to consider whether there is any argument that the individual respondents are privies of the State of South Australia for the purposes of the doctrine of res judicata. I have reached the firm conclusion that the proposed claims against the individual respondents are an abuse of process by relitigation having regard to the relevant principles identified in cases such as Rippon, Stenhouse and Spalla. 68 The conduct of the individual respondents formed the basis or at least a basis of the claim of a breach of the contractual duty of care in the Supreme Court action. As I have said, the contractual duty of care had a similar content to a tortious duty of care (Full Court at 399 [279]). The Full Court found that there was no breach of the contractual duty of care (416 [387]). The applicant tried to raise a claim against the individual respondents, but the Full Court said that it was too late to do that in the Supreme Court action (at 419 [415]). Extensive findings were made about the role played by each of the individual respondents in the relevant events. There is no suggestion of fresh evidence. All of the individual respondents except for Mr Mitchell have the benefit of s 74 of the Public Sector Management Act 1995 (SA) and are not liable for an act or omission in the exercise or purported exercise of official powers or functions, and all, including Mr Mitchell have the benefit of s 54(4a) of the Workers Rehabilitation and Compensation Act which gives them immunity unless their negligence arose from, or in the course of, serious and wilful misconduct. 69 In my opinion, in the circumstances I have identified the claims against the individual respondents are an abuse of process.

conclusion 70 I am satisfied that this proceeding is an abuse of process of the Court and should be dismissed. I will so order. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.