McGinn v Department of Family and Community Services

Grounds for the defendant's application

1. As already noted, the defendant's application invokes r 13.4 and alternatively r 14.28 of the UCPR. Rule 13.4 provides that proceedings may be summarily dismissed where they are frivolous or vexatious, where no reasonable cause of action is disclosed or where the proceedings are an abuse of the process of the Court. Rule 14.28 provides that pleadings may be struck out if they disclose no reasonable cause of action, have a tendency to cause prejudice, embarrassment or delay or are an abuse of process.
2. The defendant's principal contention is that the proceedings are an abuse of process because they seek to re-litigate issues that were determined in the proceedings in the Industrial Relations Commission. While it was put in a number of ways, the burden of the submission was that the claim raises an issue as to whether Ms McGinn's employment was "ongoing" at the time it was terminated and that the Commission's determination gives rise to an estoppel on that issue, such that any attempt to re-litigate the issue would be an abuse of process.

Can issue estoppel arise from a decision of the IRC?

1. The submission assumes an issue estoppel can arise from a decision of the Industrial Relations Commission. Noting that Ms McGinn is unrepresented, Mr Shariff, who appears for the Department, was careful to draw the Court's attention to a decision of the Full Court of the Federal Court which is arguably against him on that issue.
2. Before turning to that decision, it is appropriate to consider the authorities that support the Department's position. Mr Shariff relied primarily on the decision of the Court of Appeal in Lambidis v Commissioner of Police (1995) 37 NSWLR 320. In that case, acknowledging that a different conclusion had been reached in cases concerning administrative tribunals established under Federal legislation, the Court unanimously held that, in principle, an issue estoppel may arise from a decision of a State administrative tribunal (in that case, the Government and Related Employees Appeal Tribunal): 323C-324F per Kirby P; 332B-G per Priestley JA (with whom Powell JA agreed at 337C). The Court held that the question whether an issue estoppel has arisen in any particular case is to be answered "by reference to the powers and duties of the particular tribunal and what it has in fact done in the particular case": 333C per Priestley JA; and see Kirby P at 324C and 327C.
3. Mr Shariff also relied on the decision of the Supreme Court of Western Australia (Templeman J) in Moylan v City of South Perth (2006) 157 IR 441; [2006] WASC 262, where an issue estoppel was held to arise from a decision of the Industrial Relations Commission in that State. The plaintiff was unrepresented in that case and the question whether the principle of issue estoppel applied in the case of a decision of the Commission does not appear to have been debated. The decision nonetheless provides some support for the Department's position in the present case.
4. Finally, Mr Shariff relied on the decision of the High Court in Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34, where the Court stated the requirements for the doctrine of issue estoppel to apply (adopting the statement of Lord Guest in Carl Zeiss Stiftung v Raymer & Keeler Ltd [No 2] [1967] 1 AC 853 at 935) as follows (at [21]): "(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies."
5. Although those principles refer to "judicial" decisions, it was regarded as uncontroversial in Kuligowski that "the doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties": Kuligowski at [22], citing the remarks of Gibbs J in Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453 (a case concerning cause of action estoppel).
6. On the strength of those authorities alone, I would have had little hesitation in concluding that an issue estoppel can arise from a decision of the NSW Industrial Relations Commission. The decision that might suggest otherwise is Miller v University of New South Wales (2003) 132 FCR 147; [2003] FCAFC 180, where the Full Court of the Federal Court held that a decision of the Australian Industrial Relations Commission could not give rise to any issue estoppel.
7. The decision was based in part on an analysis of the limits of the judicial power of the Commonwealth. The Court noted that the Federal parliament "cannot validly confer on the Commission power to make binding declarations of right by way of adjudication of disputes about rights and obligations arising from the operation of the law upon past events or conduct" (at 152 [6]). As explained by Priestley JA in Lambidis at 332A-C, the position is different in New South Wales, where there is no such constitutional prohibition. Consistently with that observation, the Court in Miller accepted that, "where the constitutional separation of powers is not a strict doctrine, it might be possible for a legislature to establish a tribunal, lacking all or some of the attributes of a court, but nevertheless capable of making binding determinations about rights and obligations arising from the operation of the law upon past events or conduct" (at 152 [9]). Noting those remarks, I would not understand the decision in Miller to derogate from the principle established in Lambidis that the decision of an administrative tribunal is, in principle, capable of giving rise to an issue estoppel, depending upon the powers and duties of the particular tribunal. Indeed, Miller appears to provide support for that principle.
8. However, as Mr Shariff was careful to point out, part of the reasoning in Miller was based on an examination of the relevant legislation rather than the limits of Federal legislative power and might be understood to be against his argument in the present case. The Court concluded that the legislation under consideration in that case did not confer on the Australian Industrial Relations Commission the function of making binding determinations about rights and obligations. That conclusion warrants careful consideration in the present case because there are substantial similarities between the Federal legislation (helpfully attached as appendix 1 to the judgment in Miller) and the legislation in question here.
9. My comparison of the two legislative regimes has persuaded me that the position under the State legislation is relevantly different. In particular: 1. the objects section in the Workplace Relations Act 1996 (Cth) (s 170CA) refers to providing for "recourse to arbitration or a court" whereas the objects section of the Industrial Relations Act 1996 (NSW) (s 3) refers to providing for "the resolution of industrial disputes by conciliation and, if necessary, by arbitration", indicating that the State legislature intended to confer an entitlement to have a dispute resolved by arbitration whereas the Federal legislature contemplated only "recourse" to arbitration or a court; 2. under s 170CG of the Workplace Relations Act, the Commission "may proceed to arbitrate the matter" where the applicant has made an election to proceed to arbitration whereas s 84 of the Industrial Relations Act allows an employee "to apply to the Commission for the claim to be dealt with", suggesting the existence of an entitlement (in the State system) to have a claim determined by invoking the arbitration process; 3. one determines a question of fact whereas one determines "the claim". The task in an arbitration under s 170CG of the Workplace Relations Act is "to determine whether the termination was harsh, unjust or unreasonable" (which, in Miller at [13] and [76], was held to require an assessment of the factual circumstances) whereas the task under s 87 of the Industrial Relations Act is "to determine the claim by making an order under s 89", indicating an intention on the part of the NSW legislature to confer authority to determine rights and obligations.
10. For those reasons, I have concluded that the NSW Industrial Relations Commission does have conferred upon it the function of making binding determinations about rights and obligations arising from the operation of the law upon past events or conduct. On that basis, I am of the view that an issue estoppel can arise from a decision of the NSW Industrial Relations Commission.
11. It remains to consider whether the three requirements for an issue estoppel stated in Kuligowski (set out at [20] above) are satisfied. The third is satisfied; the parties are the same. The principal contest is as to whether the same question has been decided and whether the decision said to create the estoppel was final.

Has the same question been decided?

1. In determining whether "the same question" was decided by the Commission, the first task is to identify the questions raised by these proceedings. As already noted, Ms McGinn represents herself. Throughout the industrial process, she appears to have acquired a relatively good understanding of some of the relevant principles but her lack of legal training deprives the statement of claim of legal clarity. Mr Shariff identified the following two primary claims as those he understood to be pursued by Ms McGinn: "(a) the redundancy of her role amounted to a material breach of contract because it was not genuine as the role still needed to be performed by someone (the redundancy issue); (b) the defendant's decision to terminate the plaintiff's employment amounts to misfeasance in public office and is an intentional tort as it had no authority to terminate her employment under section 47(f) of the GSE Act as her employment was not 'ongoing' (the ongoing employment issue)."
2. Ms McGinn adopted that analysis in her written submissions and at the hearing before me. Accordingly, I am satisfied that it is appropriate to determine the Department's application on that basis.
3. Upon analysis, each of those claims raises the question whether Ms McGinn's employment was "ongoing" within the meaning of s 47(1) of the Government Sector Employment Act 2013 (NSW). The latter does so in terms. The redundancy issue raises the same question because it assumes as its central premise that Ms McGinn was made redundant at some point. She submits that occurred on 16 March 2017. To establish that would necessarily contradict the proposition that her employment was ongoing as at 30 March 2017. Accordingly, although the redundancy issue is expressed in different terms, it necessarily and directly raises the ongoing employment issue for determination by this Court.
4. The second task is to determine whether the ongoing employment issue was decided finally by the Industrial Relations Commission. There is no doubt that the Commission did decide that question; the critical issue is whether that was an incidental finding or one that was essential to the decision.
5. The proceeding in the Commission was an application under s 84 of the Industrial Relations Act. The question to be determined by the Commission was whether Ms McGinn's dismissal was harsh, unreasonable or unjust. However, as noted by the Commissioner at [7], an assessment of that test included an examination of whether the statutory power to dismiss McGinn had been validly exercised.
6. Ms McGinn's employment was terminated in exercise of the power under s 47(1)(f) of the Government Sector Employment Act, which provides: "47 Termination of Employment (1) The head of a Public Service agency may, by instrument in writing, terminate the employment of a Public Service non-executive employee of the agency on any of the following grounds if the employment is ongoing employment: … (f) the employee has refused to perform the duties of the role assigned to the employee."
7. In assessing whether that power had been validly exercised, the Commissioner considered whether there had been a refusal to perform duties (he found that there had, at [13]) and whether Ms McGinn's employment was "ongoing employment" within the meaning of s 47(1) (he found that it was, at [43]).
8. In the case of issue estoppel as opposed to cause of action estoppel, consideration must be given to whether the alleged "same question" was necessarily and directly decided by the previous tribunal: Kuligowski at [40] (citing Ramsay v Pigram (1968) 118 CLR 271 at 276). I am satisfied that it was in the present case. Although the claim in the Commission raised broader issues, the validity of the termination under s 47(1) was a central aspect of the resolution of those issues, for the reasons explained by the Commissioner at [7]-[11].
9. For those reasons, I am satisfied that the issue of ongoing employment is to be regarded as having been "decided" by the Commission in the relevant sense.

Was the decision final?

1. Ms McGinn submitted that the decision of the Commission was not final because there is a right of appeal which has not been determined on the merits and that the decision of the Full Bench refusing leave to appeal is only interlocutory. That is not to the point. As the High Court explained in Kuligowski, the fact that an appeal lies from a decision does not make it any less final. The test is whether the decision is final and conclusive on the merits: [25], 375.9. For the reasons already explained, I am satisfied that a decision of the Commission can be final and conclusive in the relevant sense.
2. I should record that Ms McGinn relied in this context on the decision of Lindsay J in Stokes (by a tutor) v McCourt [2013] NSWSC 1014 where his Honour said at [97]: "It is neither necessary nor appropriate, upon a consideration of Martin J's Judgment in the Queensland proceedings, to consider whether his Honour's reasoning was correct. The field of operation of the contentions relied upon by the defendant does not depend on the correctness or otherwise of an earlier judgment said to constrain the conduct of subsequent proceedings: Spencer Bower and Handley, Res Judicata, paras. 1.03 and 1.14. The present proceedings are not, in law or fact, an appeal from the order for dismissal of the Queensland proceedings."
3. I do not understand what proposition in support of her case Ms McGinn sought to draw from that decision. In oral submissions, she indicated that she understood the decision to be saying "there is no point to go through the reasoning, whether it is correct or not correct. It is really just to see whether that decision has determined all the rights between the parties" (T34.21). So much may be accepted. In determining whether an issue estoppel arises, to inquire as to the "correctness" of the earlier decision is inapposite; the principle holds that the issue determined in the earlier decision is taken to be closed as between the parties and not able to be re-litigated.
4. For those reasons, I am satisfied that the ongoing employment question was closed by the Commission's decision and that it would be an abuse of process to re-litigate that issue in this Court. It follows that the proceedings should be dismissed.

No reasonable cause of action disclosed

1. In case that conclusion is wrong, I should record my view that the pleading would otherwise be liable to be struck out on the grounds that it discloses no reasonable cause of action. The whole premise of Ms McGinn's claim is her steadfast assertion that her position was deleted prior to the purported termination of her employment on 30 March 2017. I am satisfied that she is plainly wrong in that respect and that the claim is accordingly hopeless.
2. Ms McGinn's argument rests on her understanding that the email to all staff of 16 March 2017 gave effect to the deletion of her substantive position, with the result that she was, from that date, an "excess employee". That term is defined in s 74(1) of the Government Sector Employees Act as follows: "excess employee" means an employee of a government sector agency who is determined by the head of the agency to be excess to the requirements of the relevant part of the agency in which the employee is employed, and includes an employee of a government sector agency who has been notified by the head of the agency: (a) that his or her role, position or work in the agency has been abolished or terminated, and (b) that he or she is an excess or displaced employee.
3. The proposition that the 16 March email amounted to a determination by the head of the agency that Ms McGinn was an excess employee is untenable. This is not a case in which it is necessary to see how the evidence unfolds in order to determine that question. The misconception is clear at a glance.
4. For those reasons, had it been necessary to determine the Department's alternative application (to have the pleading struck out), I would have struck the pleading out on the grounds that it discloses no reasonable cause of action.

Orders

1. I make the following orders: 1. That the proceedings be dismissed; 2. That the plaintiff pay the defendant's costs.

I certify that this and the 14 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice McCallum. Dated: 14 February 2018 Associate: N Sinclair DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2018