Miller v University of New South Wales

Miller v University of New South Wales [2003] FCAFC 180 ISSUE ESTOPPEL - termination of employment - decision by Australian Industrial Relations Commission that termination not harsh, unjust or unreasonable - whether proceedings in the court for interpretation and enforcement of industrial instruments estopped ABUSE OF PROCESS - termination of employment - decision by Australian Industrial Relations Commission that termination not harsh, unjust or unreasonable - whether proceedings in the court for interpretation and enforcement of industrial instruments an abuse of process COURTS AND TRIBUNALS - termination of employment - decision by Australian Industrial Relations Commission that termination not harsh, unjust or unreasonable - whether proceedings in the court for interpretation and enforcement of industrial instruments estopped or an abuse of process INDUSTRIAL LAW - termination of employment - pursuit of alternative remedies by employee - role of Australian Industrial Relations Commission

Workplace Relations Act1996 (Cth) ss 170CA(2), 170CE, 170CG(3), 170CH, 170CI, 170CK, 170CM, 170CP, 170CR, 170HA, 170HB, 170HBA, 170HC, 170JD, 178, 179, 413, 413A Federal Court Rules O 20 r 2 Attorney-General for Trinidad & Tobago v Eriche [1893] AC 518 cited Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529 discussed Blagojevch v Australian Industrial Relations Commission (2000) 98 FCR 45 distinguished Blair v Curran (1939) 62 CLR 464 applied Bogaards v McMahon (1988) 80 ALR 342 cited Bramwell v Repatriation Commission (1998) 158 ALR 623 cited Cachia v Isaacs (1985) 3 NSWLR 366 cited Comcare v Grimes (1994) 50 FCR 60 cited Commonwealth v Sciacca (1988) 17 FCR 476 cited Connelly v Director of Public Prosecutions [1964] AC 1254 referred to Edwards v Giudice (1999) 94 FCR 561 distinguished Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) SR (NSW) 13 applied Green v Hampshire County Council [1979] ICR 861 doubted Hatchett v Bowater Tutt Industries Pty Ltd (No 1) (1990) 26 FCR 561 considered Hunter v Chief Constable of the West Midlands Police [1982] AC 529 referred to Jago v District Court (NSW) (1989) 168 CLR 23 cited Johnson v Gore Wood & Co [2002] 2 AC 1 referred to Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd (2003) FCAFC 18 cited Lambidis v Commissioner of Police (1995) 37 NSWLR 320 cited Lilienthal v Migration Agents Registration Authority (2001) 65 ALD 437 cited Michaels v Commonwealth of Australia [2002] FCA 1130 cited Midland Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87 cited Miller v Australian Industrial Relations Commission (2001) 108 FCR 192 referred to Miller v University of New South Wales (2002) 115 IR 404, [2002] FCA 882 reversed Miller v University of New South Wales [2002] FCA 882 referred to Minister for Immigration & Ethnic Affairs v Daniele (1981) 61 FLR 354 considered Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 considered Morales v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 374 cited National Union of Workers v Pacific Dunlop Tyres Pty Ltd (1992) 37 FCR 419 cited North West County Council v Dunn (1971) 126 CLR 247 referred to Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 referred to R v East Sussex County Council [2002] 4 All ER 58, [2003] 1 WLR 348 referred to R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 discussed Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 applied Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 referred to Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 referred to Reichel v Magrath (1889) 14 App Cas 665 considered Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 considered Rogers v The Queen (1994) 181 CLR 251 cited Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123 considered Somodaj v Australian Iron & Steel Ltd [1960] 61 SR (NSW) 305 cited The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 considered Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 cited Victoria v Commonwealth (1995) 187 CLR 416 cited Walton v Gardiner (1992) 177 CLR 378 considered Wiest v Director of Public Prosecutions (1988) 23 FCR 472 considered WJ & F Barnes Pty Ltd v Federal Commissioner of Taxation (1957) 96 CLR 294 cited GS Bower, AK Turner and KR Handley: The Doctrine of Res Judicata, 3rd ed (1996) A Hall, "Res Judicata and the Administrative Appeals Tribunal" (1994-1995) 2 AJAL 22 DAVID MILLER v UNIVERSITY OF NEW SOUTH WALES N 806 OF 2002 GRAY, RYAN and GYLES JJ SYDNEY 14 AUGUST 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. The order of 16 July 2002 permanently staying the application be set aside. 3. The respondent's notice of motion filed 10 April 2002 be dismissed. 4. The proceeding be remitted to the docket judge. 5. Any motion for costs be filed and served within seven days of the date of this judgment. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT GRAY J: 1 The question to be determined in this appeal is whether the appellant is entitled to bring and maintain a proceeding in the Court, seeking relief arising out of his dismissal from his employment by the respondent. The appellant has already proceeded against the respondent in the Australian Industrial Relations Commission ("the Commission"), seeking relief in respect of his dismissal from his employment. The Commission dismissed his application. He then instituted a proceeding in the Court. The respondent moved to have the proceeding stayed or dismissed. The learned primary judge stayed the proceeding permanently but granted leave to appeal. See Miller v University of New South Wales [2002] FCA 882. The stay was based on her Honour's view that the respondent was entitled to raise the defence of issue estoppel in respect of issues raised in the proceeding, on the basis that those issues had already been determined against him by the Commission. Alternatively, her Honour took the view that the proceeding was an abuse of process, as it sought to litigate again the case disposed of by the Commission. 2 Details of the relief sought in the proceeding and of the facts are set out in the reasons for judgment of Ryan and Gyles JJ, which I have had the opportunity of reading in draft form. The relevant legislative provisions are set out conveniently in their Honour's appendix 1. The provisions of the relevant certified agreement and the relevant award are also set out conveniently in their Honour's appendix 2. I need not repeat any of the detail. I agree with Ryan and Gyles JJ that the appeal must be allowed and that the first order made by the learned primary judge must be set aside. There should be substituted for that order an order dismissing the respondent's motion, the subject of its amended notice of motion, filed on 10 April 2002. It is unlikely that any question of costs will arise, as each of the proceeding at first instance and this appeal is a proceeding in a matter arising under the Workplace Relations Act 1996 (Cth) ("the WR Act"), for the purposes of s 347 of the WR Act. I am content, however, to agree with the order proposed by Ryan and Gyles JJ, providing for submissions about costs, in case any question arises of an order for costs by or against the intervener. I am generally in agreement with the reasons for judgment of Ryan and Gyles JJ but desire to express fuller reasons with respect to a couple of issues. 3 It was agreed by the parties to this appeal, and by counsel for the Attorney-General for the Commonwealth, who intervened as a result of a notice pursuant to s 78B of the Judiciary Act 1903 (Cth), informing him that a constitutional question was raised in the appeal, that the definition given to issue estoppel by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531 - 533 was an appropriate definition. His Honour said: "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. ... [T]he judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous. ...[M]atters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation." 4 To determine whether the Commission made a "judicial determination" and, if so, what were the "ultimate facts which form the ingredients in the cause of action" with respect to which it made such a determination, it is necessary to look at what the Commission was entitled to do, and what it did. 5 The Commission was established by legislation following the Boilermakers Case: R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 (High Court of Australia) and Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529 (Privy Council). That case established that the separation of the judicial power of the Commonwealth from the legislative and executive powers, implicit in the Constitution, precluded the parliament from legislating to confer on a single tribunal a combination of judicial and non-judicial powers. What was initially called the Commonwealth Industrial Court was established under Ch III of the Constitution, for the purpose of exercising the judicial power of the Commonwealth in relation to matters arising under the Conciliation and Arbitration Act 1904 (Cth), the ancestral legislation of the WR Act. The Commission was established to exercise non-judicial power, particularly the quasi-legislative power of creating future rights by means of awards brought into existence to settle actual, threatened or impending industrial disputes. Much has happened legislatively since the creation of the Commission, including the invocation of legislative powers other than that found in s 51(xxxv) of the Constitution as a means of conferring powers on the Commission. Nothing has changed with respect to the inability of the parliament to confer judicial power on the Commission. See Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 360 per Gaudron J, with whom Mason CJ, Brennan, Deane and Toohey JJ agreed on the judicial power issue. 6 Charting the limits of the judicial power of the Commonwealth can be difficult, but the present case does not raise difficult issues in that regard. As the High Court said in Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188: "the making of 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 is a classical instance of the exercise of judicial power. But the declarations for which s. 733 provides are not binding declarations of right in the sense in which that term is used, more particularly in the context of the exercise of judicial power." It follows that the 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. 7 In the present case, the respondent contended that the Commission had made a determination, binding the respondent and the appellant, that the appellant's refusal to undertake the duties he was directed to perform amounted to serious misconduct for the purposes of the relevant certified agreement and that the summary termination of the appellant's employment did not involve a breach by the respondent of that certified agreement. The respondent contended that the rights of the parties are forever determined, as between them, by the dismissal of the appellant's application to the Commission. Effectively, although not formally, the rights have been declared by the Commission to be as it found. 8 If that were what the Commission had purported to do, it would have been entirely invalid. It would have amounted to the exercise of the judicial power of the Commonwealth, a power which cannot be conferred validly on the Commission. The Commission was simply not capable of making a "judicial determination" as to a "cause of action" in which "the existence of the right was negatived", to revert to Dixon J's definition of issue estoppel. 9 It is true 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. Examples can be found in The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353, which related to a tribunal established in a Territory of the Commonwealth, and Lambidis v Commissioner of Police (1995) 37 NSWLR 320, relating to a tribunal in a State. The conferral of such a function on a body other than the Court by the parliament of the Commonwealth of Australia would be beyond power. It would be necessary to have such a function conferred before a decision of a tribunal could give rise to issue estoppel. 10 An examination of the legislation under which the Commission was operating in relation to the appellant's application to it makes it clear that no such function was conferred. That legislation is found in Div 3 of Pt VIA of the WR Act. Section 170CA(2) makes it clear that the object of the procedures for conciliation and arbitration in cases involving termination of employment is to ensure a "fair go all round" for both the employer and the employee concerned. By its nature, this is an imprecise test, in the application of which the experience and expertise of members of the Commission will be of great importance. 11 When dealing with an application made pursuant to s 170CE(1)(a), on the ground that the termination of employment was harsh, unjust or unreasonable, the Commission is required to follow a three-stage process. The first stage is conciliation, pursuant to s 170CF. Obviously, the matter may be settled at that point. If not, the Commission is required to issue a certificate stating its satisfaction that all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful. The Commission must then indicate its assessment of the merits and may recommend that the applicant elects not to pursue a ground or grounds of the application. The proceeding can also be terminated at that stage, if the Commission forms the view that the application has no reasonable prospect of success, invites the applicant to provide further information in support of its ground and then issues a certificate that the application has no reasonable prospect of success. 12 If the matter is not settled, and the applicant does not elect to proceed immediately to court, the second stage is arbitration under s 170CG. At this stage, the Commission is required to determine whether the termination was harsh, unjust or unreasonable. In doing so, it is required to have regard to all of the matters referred to in s 170CG(3). The first of these matters is whether there was a valid reason for the termination, related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service. It might be thought that, at this point, the Commission is called upon to determine the legal rights of the parties. 13 In terms of legal rights, the employment of most employees in Australia is terminable on some form of notice. The right to terminate by notice might arise from the express or implied terms of the contract of employment, or from an award or other collective instrument governing the terms and conditions of the employment. Generally, the notice may be given by either party. Also generally, it might be given for good reason, bad reason or for no reason at all. If the "valid reason" contemplated by s 170CG(3)(a) of the WR Act involved no more than an inquiry into the legal rights of the parties, in most cases it would be a short inquiry. It would be answered by saying that the employer had a right to dismiss the employee on notice and had exercised that right. The provision refers to a "valid reason" in another sense altogether. The reason must be related to the capacity or conduct of the employee, or to the employer's operational requirements. What is sought is not the existence of a legal entitlement to terminate the employment, but the existence of a reason for the exercise of that right that is related to the factual situation. The validity is not to be judged by reference to legal entitlements, but to the Commission's assessment of the factual circumstances as to what the employee is capable of doing or has done, or as to what the employer requires in order to continue its activities. 14 It is true that the Commission might be invited to take the view that there was no valid reason, because the employer did not have a legal right in the circumstances to terminate the employment. The appellant invited the Commission to take that view in the present circumstances. This does not mean, however, that the Commission makes a final and binding determination of the existence or non-existence of a legal right to terminate. It means that the Commission forms an opinion as to existing legal rights and obligations as a step towards its assessment as to whether there is a valid reason of the kind contemplated by s 170CG(3)(a), which in turn is a step towards determining whether the termination is harsh, unjust or unreasonable, having regard to the existence or otherwise of the valid reason and the other required factors. Counsel for the respondent in the present case conceded that the Commission could have determined that there was a valid reason (of the kind contemplated) for the respondent to terminate the appellant's employment, whether or not the appellant's conduct was considered to justify summary termination. The concession serves to emphasise the nature of the task performed by the Commission and the role played by legal rights and obligations in that task. 15 In a given case, it would be open to the Commission to determine that there was no valid reason for termination of the employment, even if the employer had a legal right to terminate the employment. As I have said, the existence of a legal right to terminate the employment is not sufficient to lead to the conclusion that there is a valid reason for the termination, in terms of s 170CG(3)(a). Conversely, it would be open to the Commission to find that there was a valid reason, of the kind contemplated by that provision, even if the termination was in breach of the contract of employment, an award, or a collective agreement. The application of the concept of a valid reason, and of the other factors to which the Commission must have regard, as well as the overall requirement of a "fair go all round", might lead to the conclusion that a breach is to be disregarded, in determining whether a termination is harsh, unjust or unreasonable. It would be open to the Commission to proceed straight to the questions it is required to determine, ignoring any question of legal rights, although the Commission might choose to deal with the issue of legal entitlement to bring the employment to an end. The existence or non-existence of issue estoppel in relation to a fact or a legal conclusion cannot depend upon whether the Commission chooses to express a finding or an opinion about a fact or legal conclusion which it is not obliged to express. 16 The third stage of the Commission's function is the choice of a remedy, pursuant to s 170CH. This power can be exercised only if there has been a determination that the termination was harsh, unjust or unreasonable. The Commission must be satisfied as to the appropriateness of a remedy, having regard to the circumstances of the case, including those listed specifically in s 170CH(2). Under s 170CH(3), the Commission may make an order requiring the employer to reinstate the employee. If so, the Commission may also make orders to maintain the continuity of the employee's employment and order payment of lost remuneration. Under s 170CH(6), if the Commission thinks that reinstatement is inappropriate, it may make an order requiring the employer to pay an amount of money. Section 170CH(7) requires the Commission to have regard to all of the circumstances, including those specifically set out. The exercise of each of these powers is hinged upon the Commission forming a view that the exercise of the power is appropriate. The language of s 170CH is not the language of existing entitlements. It is the language of the creation of new rights. There is no right to reinstatement, nor to the payment of any sum of money. Even if the Commission forms the view that a termination was harsh, unjust or unreasonable, it may consider that it is inappropriate either to order the reinstatement of the employee or to order the employer to pay a sum of money. Whatever order it makes, the Commission will be regulating the future relations of the parties, not enforcing their past legal rights and obligations. Although reduced to an individual relationship, the powers are similar to the quasi-legislative powers to make awards governing terms and conditions of employment. The process of making them is quite unlike the process whereby a court makes findings of fact as to past conduct and determines the existing rights and obligations of the parties by the application of the law to the facts as found. 17 This analysis demonstrates that any finding the Commission may make as to the contractual rights of the parties, the meaning of any award or other collective instrument, and the entitlement or otherwise of the employer to exercise a right to terminate the employment, by notice or by summary dismissal, is merely an opinion as to such rights and obligations, as a step to the determination of future rights. As Mason CJ, Brennan, Deane, Dawson and Toohey JJ said in Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 149: "Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties ... Of course, the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights." See also Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 666. 18 This analysis also shows that the Commission was performing a very different function, and addressing itself to very different issues, from those required to be performed and addressed by the Court in the appellant's proceeding at first instance. In the Court, there is no umbrella object of a "fair go all round". Questions of harshness, injustice or unreasonableness relating to the termination of the appellant's employment have no role. The determination of the question whether there was a breach of the certified agreement, or whether the appellant's refusal to perform the duties in question gave rise to a right of summary dismissal, involve considerations very different from the kind of "valid reason" with which the Commission was dealing. In contrast with the requirement that the Commission focus on the future rights of the parties as to reinstatement or compensation (if it had reached that stage), the Court will be required to examine the rights and obligations of the parties according to law, in accordance with its findings of fact as to their past conduct. The true meaning of the certified agreement can be determined in a binding fashion only by the Court. Only the Court can make a binding determination as to whether the respondent acted lawfully when it dismissed the appellant summarily. None of the ultimate facts, nor the conclusions of law, involved in the appellant's causes of action in the Court has been the subject of any judicial determination by the Commission. 19 In s 170HB of the WR Act, parliament has expressed the circumstances in which a cause of action is barred as a result of a proceeding of the kind brought by the appellant in the Commission. To the extent to which s 170HB is inapplicable to the present case, the appellant is entitled to proceed. No issue estoppel prevents him from doing so. The causes of action on which he relies in the Court have not been the subject of any determination such as to cause the proceeding to be an abuse of process.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT RYAN and GYLES JJ: 20 On 16 July 2002 the primary judge permanently stayed a proceeding by David Miller, as applicant, against the University of New South Wales, as respondent (Miller v University of New South Wales (2002) 115 IR 404, [2002] FCA 882). The primary judge granted leave to appeal, and this is that appeal. The substantive relief sought in the amended application was as follows: 'Under the Workplace Relations Act 1996: 1. A declaration under s 413A of the Workplace Relations Act 1996 (Cth) ("the Act") that the term "serious misconduct" as it appears in cl 14 of the University of New South Wales (Academic Staff) Enterprise Agreement 1997-1998 ("the certified agreement") is exclusively defined in cl 5(d) of the Universities and Post Compulsory Academic Conditions Award 1995. 2. A declaration under s 413A of the Act that the respondent breached sub clauses 14.0(d), (g) and (h) of the certified agreement by summarily terminating the employment of the applicant on 13 March 1998. 3. The imposition under s 178 of the Act of penalties with respect to the breaches of sub clauses 14.0(d), 14.0(g) and 14.0(h) of the certified agreement, each such penalty to be paid to the applicant pursuant to s 356(b) of the Act. 4. An order that the respondent pay to the applicant all monies owing pursuant to the certified agreement from 13 March 1998 to the date of judgment. 5. In the alternative to (4) above an order under s 179 of the Act for payment of monies owed to the applicant by the respondent by way of payment in lieu of notice under clause 14 pursuant to clause 14.0(d) of the certified agreement calculated as follows: Payment of twelve months salary in lieu of notice $76,794 4 weeks recreation leave accrued during the 12 months $ 5,908 17% employer superannuation contribution on $82,702 $14,060 $96,762 Less ex gratia payment $ 7,361 TOTAL: $89,401

Under the Contract of Employment Between the Parties: 6. An order that the respondent pay the applicant damages for breach of the contract of employment calculated as follows: twelve months salary in lieu of notice and associated benefits as set out above: $89,401 Amount for loss of opportunity of continued employment for Period of 10 years: $776,757.15 Weekly remuneration $1719.25 The 3% Multiplier for 10 years is 451.8 $1719.25 x 451.8 General Damages $100,000.00 TOTAL: $966.158.15'

21 As the proceeding was stayed on the basis of issue estoppel or abuse of process, it is convenient to set out the forensic history before returning to look more closely at the basis of the claim. The relevant legislation is set out in Appendix 1 and extracts from the industrial instruments are set out in Appendix 2.

Relevant History 22 The appellant commenced employment with the respondent in 1977. In 1990 he was promoted to the level of Associate Professor. He was a member of the School of Physics. In February and again in September 1997 the appellant was instructed by the Head of the School of Physics to undertake the duties of First Year Laboratory Director ("FYLD"). The appellant did not wish to do so. Despite a good deal of communication, the appellant refused to undertake those duties. By letter of 13 March 1998 the Vice Chancellor of the respondent wrote to the appellant, including the following: 'Disciplinary Action under the UNSW (Academic Staff) Enterprise Agreement 1997-98 In my letter to you dated 4 March 1998, I indicated what action I would consider after receiving your response to that letter. I have now received your response dated 12 March 1998. You have clearly stated that you will not, without qualification, accept the task of First Year Laboratory Director. I have considered the additional matters raised in your letter dated 9 March 1998. However, I am still of the view that you are guilty of serious misconduct within the meaning of the UNSW (Academic Staff) Enterprise Agreement 1997-98. Clause 3 of the Agreement sets out the options available to me by way of disciplinary action. Your refusal to obey your Head of School's instruction is, in my view, a matter that goes to the essence of your employment contract with the University. Accordingly, I advise that your employment with the University is terminated with effect from today's date. Notwithstanding the fact that the seriousness of your conduct entitles me to terminate your employment immediately, which is what I am doing, I am going to provide you with payment equal to 5 weeks' pay. Monies owed to you representing payment of your salary up to today, 5 weeks' pay plus accrued annual leave, annual leave loading and long service leave will be paid into your nominated bank account.' 23 On 16 March 1998 the appellant filed an application in the Australian Industrial Relations Commission ("the AIRC") for relief in respect of the termination pursuant to subs 170CE(1) of the Workplace Relations Act1996 (Cth) ("the Act"). The grounds identified were: (a) that the termination was harsh, unjust or unreasonable; and (b) an alleged contravention of s 170CK (discrimination). 24 The relief sought was both reinstatement and an amount in respect of the remuneration lost, or likely to have been lost, by the appellant because of the termination. 25 In the circumstances, Dr Miller had an election (following unsuccessful conciliation) to: '… do either or neither of the following: (c) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable; (d) to begin proceedings in the Court for an order under s 170CR in respect of the alleged contravention, or of any one or more of the alleged contraventions (s 170CFA of the Act).' 26 Senior Deputy President Harrison heard the application to the AIRC which she dismissed on 29 October 1999, giving quite elaborate conclusions for that decision. Her conclusion was as follows: 'I have earlier found that Dr Miller was required to comply with the lawful and reasonable directions of his employer. I have also earlier found that the direction to Dr Miller to assume the job of FYLD was lawful. On the basis of my findings in those parts of this decision in which I have considered s 170CG(3)(a) and (e) I also find that direction was reasonable. In my opinion Dr Miller had no proper basis to refuse that direction. The University had a valid reason to dismiss him. It did all that could reasonably be expected to accommodate Dr Miller's concerns about ensuring he would have adequate time for research. None of the grounds asserted by Dr Miller as to why he should not be directed to do the job were persuasive.' In the course of the decision, Senior Deputy President Harrison found that the failure by the appellant to carry out the instruction was serious misconduct within the meaning of s 170CG(3) on the basis that there was no definition of serious misconduct in the University of New South Wales (Academic Staff) Enterprise Agreement 1997-1998 ("the Certified Agreement"), but that, if the Certified Agreement incorporated the Universities and Post Compulsory Academic Conditions Award 1995 ("the Award") definition of serious misconduct, then, in her opinion, the actions of the appellant fell within that definition also. 27 The appellant then sought leave to appeal to the Full Bench of the AIRC against the decision of Senior Deputy President Harrison. Leave was required pursuant to s 45 of the Act, and s 170JF(2) provided that such an appeal "may only be made on the grounds that the Commission was in error in deciding to make the order". On 7 March 2000 the Full Bench of the AIRC refused leave to appeal, giving written reasons for that decision (Miller v University of New South Wales (2000) 96 IR 106). 28 The appellant then applied for certiorari and mandamus directed to the AIRC, which proceeding was remitted to the Full Court of the Federal Court for hearing. The Full Court decided that the Full Bench of the AIRC had committed jurisdictional error in its consideration of the question, and certiorari and mandamus were issued and the matter remitted to the Full Bench accordingly (Miller v Australian Industrial Relations Commission (2001) 108 FCR 192). 29 The Full Bench of the AIRC again considered the application for leave to appeal, and when the matter came back before it application was made by counsel for the appellant for the admission of new evidence and for the amendment of the grounds of appeal. On 30 May 2001 the Full Bench determined to admit the new evidence, a programme was established for the filing of the additional evidence, the hearing of the evidence and the filing of written submissions. On 11 October 2001 the Full Bench concluded that leave should be granted but dismissed the appeal (Miller v University of New South Wales (2001) 110 IR 1). The Full Bench decided that the direction to assign the FYLD position to the appellant was reasonable, that the failure to carry it out constituted serious misconduct, both at common law and under the Award definition, and that there had been a valid reason for termination connected with the appellant's conduct. The AIRC therefore concluded that, the appellant having been dismissed for serious misconduct, in all the circumstances the termination of his employment was not harsh, unjust or unreasonable. 30 In the meantime, the appellant, by an application dated 22 August 2000, had applied to this Court under s 413A of the Act for an interpretation of the Certified Agreement and for a declaration that the respondent breached a clause of a certified agreement when it summarily dismissed him; under s 178 of the Act the imposition of a penalty for breach of a certified agreement, and under s 179 and s 179A of the Act for the recovery of wages and interest. The respondent, which had filed a conditional appearance, moved the Court for an order that the proceeding be "set aside" or, alternatively, "be stayed or stood out of the list until the proceedings in matter N 801 of 2000" had been concluded. That was the proceeding initiated by the appellant in the High Court which was remitted to the Federal Court and was the subject of the Full Court decision. 31 On 7 November 2000 the primary judge ordered that the claim for relief made by the applicant pursuant to s 179 of the Act be dismissed and that, until further order, no further formal step be taken without the leave of the Court (Miller v University of New South Wales [2000] FCA 1563). The order in relation to s 179 was made pursuant to O 20 r 2 of the Rules of Court as it was held that no reasonable cause of action was disclosed. The appellant then sought leave to appeal against that decision. When that application came on for hearing it was accepted that the appellant had been inadvertently denied natural justice in relation to the making of that order. Leave to appeal was granted, the appeal was allowed, and the order for dismissal was set aside. 32 The appellant then sought the disqualification of the docket judge on the ground of apprehended bias. The judge did not accede to that submission (Miller v University of New South Wales (No 2) [2001] FCA 1198). 33 The respondent then moved, pursuant to the amended notice of motion dated 10 April 2002, for an order under O 20 r 2 of the Federal Court Rules that the proceeding be permanently stayed and, or alternatively, that par 6 of the amended application (which sought relief at common law based upon alleged breach of his contract of employment) be dismissed on the ground that it disclosed no reasonable cause of action. By then, the application had been amended as has been set out earlier in these reasons. 34 The contentions on behalf of the appellant University were summarised by her Honour as follows: '29. The University argued that the application in this proceeding, if it had been filed before Dr Miller's application to the AIRC under s 170CE of the Act, would because of the operation of s 170HB(1) of the Act have prevented Dr Miller's application to the AIRC. The University contended that s 170HB(4) therefore operates to disentitle Dr Miller from taking this proceeding. 30. Secondly, the University, at least formally, invoked the rule as to res judicata. It contended that Dr Miller is no longer in a position to claim the relief identified in the amended application because this proceeding raises the same issues as were raised before the AIRC with the consequence that the causes of action upon which he relies have merged in the judgment of the Full Bench of the AIRC. 31. Further, or in the alternative, the University contended that Dr Miller is estopped from re‑agitating in this Court the issues determined by the Full Bench of the AIRC. 32. Finally, as to the proceeding as a whole, the University contended that this proceeding is an abuse of the process of the Court as it involves an attempt by Dr Miller to litigate again a case which the Full Bench of the AIRC disposed of in a manner adverse to him. 33. As to paragraph six of the amended application […], the University invited the Court to strike out the paragraph on the basis that it fails to disclose a reasonable cause of action.' 35 It was held that the only aspect of the amended application that s 170HB(4) disentitled the appellant from advancing was so much of the claim advanced by par 3 of the amended application as depended upon alleged breaches of subcll 14.0(g) and (h) of the Certified Agreement. The reason for that order was as follows: '52. To the extent that paragraph 3 of the amended application places reliance on subclauses 14.0(g) and (h), it is not, in my view, a claim that Dr Miller's termination was unlawful because of a failure by the University to provide a benefit to which he was entitled on termination within the meaning of s 170HB(1). Subclause 14.0(g) of the certified agreement is concerned to identify who may take disciplinary action and the process to be followed when disciplinary action is taken. Subclause 14.0(h) is concerned with the nature of the disciplinary action which may be taken under the certified agreement. To the extent that paragraph 3 of the amended application places reliance on subclauses 14.0(g) and (h) of the certified agreement, it seeks remedies in respect of the termination of Dr Miller's employment for a reason other than a failure by the University to provide a benefit to which he was entitled on the termination. Section 170HB(4) operates to disentitle Dr Miller from making these claims.' We will not set out here the reasoning for refusing to hold that s 170HB(4) prevented other aspects of the application from proceeding. 36 It was held that the rule as to res judicata (or cause of action estoppel) had no application as the causes of action in the proceeding in the Court were not the same as the cause of action upon which the appellant had relied before the AIRC. 37 After considering various authorities, the judge held that s 170CI of the Act, which makes an order of the AIRC under s 170CH of the Act final and binding between the parties subject to a right of appeal to a Full Bench of the AIRC, revealed a legislative intention that a decision of the AIRC under s 170CH of the Act could give rise to an issue estoppel. It was held that the AIRC proceedings determined whether a valid reason existed for the termination of the appellant's employment by the University, and included a finding that the conduct on the part of the appellant amounted to serious misconduct, namely, conduct constituting a serious breach of contract evincing an intention no longer to be bound by the contract, from which it followed that there existed a valid reason under the Certified Agreement for the termination of the appellant's employment. 38 Her Honour proceeded as follows: '79. In the present proceeding Dr Miller by paragraph 1 of the amended application seeks a declaration, in effect, as to the meaning of the term "serious misconduct" in the certified agreement. The only purpose of such a declaration would seem to be to undermine the process of reasoning whereby the Full Bench of the AIRC found that there was a valid reason under the certified agreement for the termination of Dr Miller's employment by the University. The declaration is sought to support the claims made by paragraphs 3 and 5 of the amended application. In my view Dr Miller is estopped from re‑litigating the issue of whether there was a valid reason under the certified agreement for the termination of his employment by the University. I incline to the view that, for this reason, he is estopped from seeking a declaration as to the meaning of "serious misconduct" in the certified agreement. If he is not so estopped, the claims for the declaration, in my view, gives rise to an abuse of process. Pursuit of the claim 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" (see Walton v Gardiner (1992) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 393). 80. By paragraph 2 of the amended application Dr Miller seeks a declaration that the University breached the certified agreement by summarily terminating his employment. In my view Dr Miller is also estopped from re‑litigating this issue which has been determined adversely to him by the Full Bench of the AIRC. For the same reason Dr Miller is estopped from claiming penalties in respect of the alleged breaches of the certified agreement by the University (paragraph 3 of the amended application), and from claiming an entitlement to payment in lieu of notice under clause 14.0(d) of the certified agreement (paragraph 5 of the amended application). The Full Bench of the AIRC determined that Dr Miller was not entitled to notice of termination under clause 14.0(d) of the certified agreement. 81. Paragraph 6 of the amended application claims damages for breach of the contract of employment between Dr Miller and the University. The statement of claim filed by Dr Miller reveals that this claim is based on the allegation that the direction that he performed the duties of FYLD was a repudiatory breach of contract on the part of the University in that it required him to perform duties which were inconsistent with his position as Associate Professor. In my view, in view of the findings of the Full Bench of the AIRC, Dr Miller is estopped from re‑litigating this issue. If I am wrong in this regard, I consider that the claim gives rise to an abuse of process as it seeks to re‑litigate anew the case disposed of by the Full Bench of the AIRC.' 39 Having rejected an argument that the respondent had been precluded, by its conduct, from pursuing its motion, it was ordered that the proceeding be permanently stayed. Her Honour had earlier refused to strike out the whole of par 6 on the ground that it disclosed no reasonable cause of action, although it was described as "an ambitious claim".

Statutory Options 40 At first instance it was argued for the respondent that, as an application pursuant to s 170CE on the ground that the termination was harsh, unjust or unreasonable has been made and concluded, s 170HB(4) has the effect that the appellant is not entitled to take proceedings for any other remedy that, if it had been applied for before the application on that ground, would, because of s 170HB(1), have been prevented. The effect of s 170HB(1) and (4) is that it is to be assumed that the present proceeding had been brought before the application which was brought pursuant to s 170CE in the AIRC, and it then had to be decided whether, on that assumption, the application which was brought in the AIRC would have been prohibited. The question is whether the present proceeding is for a remedy in respect of the termination: (a) under another provision of the Act; (b) under another law of the Commonwealth; or (c) under a law of a State or Territory;

(d) "harsh, unjust or unreasonable" (however described); or

for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on termination (s 170HB(1)). A proceeding under those provisions seeking compensation, or the imposition of a penalty, because an employer has failed, in relation to a termination of employment, to meet an obligation:

(b) to provide a severance payment as a result of the termination; or

(c) to provide any other entitlement payable as a result of the termination;

is taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on the termination (s 170HB(3)). 41 As has been seen, the primary judge found that the only aspect of the immediate application that was affected by s 170HB(4) was so much of the claim advanced by par 3 as depended upon alleged breaches of subcl 14.0(g) and (h) of the Certified Agreement. It was held that the common law claim was not caught by any relevant provision, and that, insofar as the claim alleged a breach of subcl 14.0(d) of the Certified Agreement, it was constituted by a failure by the employer to provide a benefit to which the employee was entitled on the termination within the meaning of s 170HB(1) and (3). There is no appeal by the appellant against those findings. The effect of this conclusion as to the interplay between remedies in these circumstances is that the appellant is not expressly prevented by the Act from pursuing compensation and the imposition of a penalty in relation to the alleged failure of the respondent to give adequate notice of termination or breach of related obligations. The primary judge also correctly held that the Act says nothing as to common law remedies. 42 It is submitted for the appellant that this conclusion, taken with the scheme of Div 3 of Pt VIA as a whole, and subdiv F in particular, tends strongly against the conclusion that there could be either an estoppel or a finding of abuse of process to prevent pursuit of a course which the statute leaves open to the employee. Attention is particularly drawn to s 170HA. 43 It is also instructive in this connection to consider the elections provided for by s 170CFA. As set out earlier, the original application by the appellant to the AIRC nominated the ground that the termination was harsh, unjust or unreasonable and the ground of an alleged contravention of s 170CK. It did not include contravention of s 170CM. There is no evidence as to the form of the certificate pursuant to s 170CF(2). However, it may be assumed that s 170CFA(3) was engaged. The appellant had the election between proceeding to arbitration to determine whether the termination was harsh, unjust or unreasonable, or beginning proceedings in the Court for an order under s 170CR. The former course was taken. 44 The present proceeding is not for an order pursuant to s 170CR for contravention of s 170CK. Even if it were (as perhaps it should have been) a proceeding pursuant to s 170CP(2) for orders under s 170CR(4) for contravention of s 170CM, there are no AIRC proceedings available to pursue such contravention, and thus there could be no suggestion of an election between remedies involved. The election which is available under this section is only as to whether proceedings are taken in the Court or not. If the appellant had also included contravention of s 170CM in his grounds, s 170CFA(5) would have applied and he would have been free to pursue both the AIRC arbitration pursuant to s 170CE(1)(a) and the Court proceeding for orders under s 170CR in respect of the contravention of s 170CM. 45 This proceeding does not directly involve Div 3 of Pt VIA of the Act. Other statutory remedies are sought to be invoked - s 413 and s 413A as to interpretation and s 178, s 179 and s 179A for recovery of penalties, monies owing and interest. The Act does not expressly address the interplay between those provisions and Div 3 of Pt VIA. 46 The legislature created various statutory rights in relation to termination of employment, and indicated the circumstances in which they might or might not be exercised. An evaluation of those circumstances required account to be taken of remedies under other State and Commonwealth statutes. This was against the backdrop of the potential common law action for wrongful dismissal. Certain limited circumstances were defined in which pursuit of a remedy under s 170CE(1)(a) would bar the pursuit of some of the other remedies. There is force in the appellant's submission that there is no occasion to erect additional barriers.

Res Judicata - Cause of Action Estoppel 47 This analysis makes it clear that the primary judge was correct in holding that there was no res judicata in the present case, even assuming that it was an available plea. The "causes of action" are quite different. None of the remedies now claimed was dealt with, or could have been considered, in the AIRC proceeding.

Issue Estoppel 48 Counsel for the appellant submitted that it was contrary to principle to hold that this decision of the AIRC could give rise to an issue estoppel in a proceeding in this Court, as a true issue estoppel can only arise from a judicial determination. The function of the AIRC was arbitral, not judicial, and could not be judicial because of the provisions of Ch III of the Constitution. 49 Counsel for the respondent submitted that a judicial determination for this purpose did not have to be a decision made in the exercise of the judicial power of the Commonwealth in the constitutional sense. It is sufficient if the decision is made by a body which is bound to act judicially, such as are often called judicial or quasi-judicial tribunals, and the AIRC is such a body when exercising the jurisdiction which was exercised in this case. The findings by the AIRC on an issue that is essential to an order under s 170CH of the Act could create an issue estoppel in this proceeding. This submission was supported by counsel for the Attorney-General of the Commonwealth. 50 The starting point for the argument is the well-known statement by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531: 'A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion …' 51 The primary judge considered that the question of principle was settled in favour of the respondent by the passage from the decision of Gibbs J (with whom in this regard Menzies and Stephen JJ agreed) in The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453 as follows: 'The use of the phrase "judicial tribunal" in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative …. The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc …' (citations omitted) 52 The following passage appears at 402-403 of the judgment of Barwick CJ (with whom, in this respect, McTiernan and Menzies JJ agreed): 'In my opinion, therefore, it is abundantly clear that a Board appointed pursuant to s 9 of the Ordinance was not limited to dealing with waste lands which had been dealt with or fell to be considered under s 8. Power was given to the Board to decide ownership in the case of all disputes on that question. "All" in this context means "any" dispute where a Papuan was a claimant. The significant point of s 9 is that the power is to appoint a Board which is to decide. The obligation to act judicially comes from the power to decide the rights of individuals. The Board was, in my opinion, quite clearly a tribunal which, having power to decide such rights, was a body to which the prerogative writs would have gone. It was bound to observe the rules of natural justice, even though it might act according to equity and good conscience and not be bound by rules of legal procedure. Though freed of technical rules the Board was bound by legal principles in the decision of such a question as the ownership of land. It was not given power to award land to a person who in its opinion did not own it. Its task, if it was to decide ownership, was to ascertain the existing facts and apply the existing law to those facts in order to decide who did own the land. That, to my mind, is clearly work of a judicial nature and a decision as to the ownership must of necessity, subject to appeal, be final as between the parties before the Court or who, being duly notified, could have been before it. I am unable to perceive what relevance questions of judicial power in the constitutional sense have in this connexion. What is central to the Board's power is the power to decide. It may well be that in a system where a separation of powers existed that function could be classed as an exercise of judicial power. But it is quite immaterial in the present connexion to consider such a question or decided cases which deal with it. In my opinion, the purpose of appointing a Board under s 9 was clearly to resolve a dispute and lay to rest the question of ownership of land to which a Papuan laid claim. It is to be observed that the consequence of the Board's decision was an entry on a register with the intention of giving absolute finality to the matter. See Land Ordinance s 6. In my opinion, the decision of the Board was binding on the parties to it, their privies and upon those notified of the hearing with opportunity to make their claims, and to that extent upon the Land Titles Commission in considering a claim to the same land by one of those parties or a privy of one of those parties or by a person have [sic] had the opportunity of claiming or of being heard.' 53 Section 9 of the Land Ordinance of 1911 (Papua) provided: 'It shall be lawful for the Lieutenant-Governor by Proclamation in the Gazette to appoint a Board or Boards to decide all questions as to waste and vacant lands or lands alleged to be waste and vacant and all cases of disputed ownership of land in which a Papuan native is claimant. The Board in giving its decision shall be guided by the principles of equity and good conscience and shall not be bound by rules of evidence or legal procedure. An appeal shall lie from the Board to the Central Court. The practices regulating such appeals shall be as laid down in regulations to be made by the Chief Judicial Officer and published in the Gazette.' 54 The primary judge regarded the decision in Green v Hampshire County Council [1979] ICR 861 as consistent with Daera Guba and as an example closely in point. The relevant facts of that case were stated as follows (at 863): 'On February 7, 1972, the plaintiffs were dismissed for alleged misconduct relating to their place of residence and failure to comply with specific instructions. On March 25, 1972, the appeals committee of the defendants dismissed appeals by the plaintiffs against the decision to dismiss them. The plaintiffs then complained to the industrial tribunal against their dismissals. The complaints were dismissed on June 26, 1972. The plaintiffs then appealed to the National Industrial Relations Court. Those appeals were dismissed without hearing argument on October 16, 1972, on the basis of an existing decision of the Court of Appeal. In consequence of a subsequent decision of the Court of Appeal, the National Industrial Relations Court heard the matter afresh on January 25, 1973, and ordered that the plaintiffs' complaints be re-heard by a freshly constituted tribunal. In May 1973, the re-hearing took place. On May 31, 1973, the tribunal, in a full written judgment, dismissed the complaints. The plaintiffs then attempted to appeal to the National Industrial Relations Court against that decision. Their appeals, however, were out of time, and leave to appeal out of time was refused by the court. Save that in 1974 the plaintiffs seem to have informed the defendants of their intention to issue an originating summons in the Chancery Division raising various matters relating to the employment which in fact never seems to have been done, the defendants heard on [sic] more until the present action was commenced in November 1977. The amended statement of claim asks for (1) declarations that the plaintiffs' dismissals were illegal, ultra vires and void; (2) declarations that the procedure adopted by the defendants was contrary to the rules of natural justice; (3) orders for restitution of the plaintiffs' employment; and (4) inquiry as to damages and payment of damages.' 55 Fox J said (at 864): 'It is clear that a statutory tribunal such as the industrial tribunal is a judicial tribunal for the purposes of the doctrine [ie res judicata]: see Spencer Bower and Turner: Res Judicata 2nd ed. (1969), para. 24 and the cases there cited, and I see no reason to doubt that it was a judicial decision. The tribunal gave a full reasoned judgment. It contained an investigation of the facts, an analysis of the facts, findings of fact, and, lastly, the application of the law to those findings. For the operation of the doctrine there must, however, be an identity of subject matter between the proceedings. That identity may arise from a cause of action estoppel or from issue estoppel. The present case is admittedly not of the first kind, but it is in my view issue estoppel. … It is clear that in the very full judgment of the tribunal two things were decided. First, that the plaintiffs were dismissed by the defendants: see paragraph 36 of the decision; secondly, that the dismissals were not unfair: see paragraph 40. The burden of paragraph 5, 6, 7 and 9 of the statement of claim is (a) that there was no dismissal of the plaintiffs at all; what was done was quite unlawful (b) that what was done was in breach of contract; and (c) that the purported dismissals were in breach of the rules of natural justice and of equity. These conditions seem to me to be quite inconsistent with the findings of the tribunal. The tribunal found that the plaintiffs were dismissed and that such dismissals were not unfair. Those findings are inconsistent with the contention that the plaintiffs were never lawfully dismissed at all, that the defendants were in breach of contract, and acted illegally and contrary to natural justice. If the dismissals, as the tribunal found, were not unfair, it is difficult to see how they or the proceedings by which they were arrived at could have been contrary to natural justice.' 56 It is reasonably well established that (leaving aside constitutional considerations in relation to federal legislation) the principles of res judicata, whether cause of action estoppel or issue estoppel, can apply to decisions of bodies which are not called courts and which are not courts in the ordinary use of that term. In addition to the authorities already referred to, see Ex parte Amalgamated Engineering Union (Australian Section); re Jackson (1937) SR (NSW) 13; Somodaj v Australian Iron & Steel Ltd [1960] 61 SR (NSW) 305, Cachia v Isaacs (1985) 3 NSWLR 366 and Lambidis v Commissioner of Police (1995) 37 NSWLR 320 and the discussion in GS Bower, AK Turner and KR Handley, The Doctrine of Res Judicata, 3rd ed (1996) at pars [23], [352] and [353]. On the other hand, there is a considerable body of authority in the federal jurisdiction which casts doubt upon the application of this principle to Commonwealth tribunals, much of which is discussed in Hall, 'Res Judicata and the Administrative Appeals Tribunal' (1994-1995) 2 AJAL 22. 57 The primary judgment refers to the decision of von Doussa J in Hatchett v Bowater Tutt Industries Pty Ltd (No 1) ( 1990) 26 FCR 561. That proceeding involved similar issues to those in the present case. The applicant sought remedies upon the ground that her employment with the respondent had been terminated in circumstances rendering that termination harsh, unjust or unreasonable, and so in contravention of the relevant federal award. The relief sought included a penalty pursuant to s 178(1) of the relevant Act, a declaration that the provisions of the relevant award were incorporated as terms of her contract of employment, reinstatement allowing her to work according to the terms of the contract of employment, and damages for breach of contract. Earlier, a Commissioner of the AIRC had decided that the respondent's action in terminating the services of the applicant was not unfair within the meaning of the relevant clause of the award. The claim for relief in each case was based upon the same facts leading to what was said to be a contravention of the same clause of the same award. von Doussa J held that the AIRC lacked jurisdiction to ascertain and declare the existing rights of the applicant and, in particular, to declare whether the termination of her employment had occurred in circumstances which contravened the award. In his Honour's opinion, the relief sought on behalf of the applicant in the AIRC related wholly to the ascertainment, declaration and enforcement of the applicant's existing legal rights which required a judicial determination, being an exercise of judicial power which the AIRC lacked (see at 567). von Doussa J had pointed out that, at that time, the jurisdiction of the AIRC depended upon the constitutional underpinning of the power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State, and that it was well established that the AIRC's power and function in relation to such an industrial dispute was arbitral not judicial. 58 In the course of his judgment, von Doussa J referred to some earlier authorities as follows (at 567-568): 'The distinction between a power of arbitral decision, and a power of judicial determination, makes it readily understandable that in Australian Transport Officers Federation v State Public Services Federation (1981) 50 FLR 438 a Full Court of the Federal Court said (at 445): "We have considerable doubt whether the principles of estoppel in pais either res judicata, estoppel by cause or issue estoppel apply to proceedings in the Conciliation and Arbitration Commission. Some consideration was given to the question in Australian Commonwealth Shipping Board v Federated Seamen's Union of Australasia (1925) 36 CLR 442. In that case a distinction was made between the effect of unreversed decisions of a court exercising judicial power and the then Commonwealth Court of Conciliation and Arbitration exercising powers then regarded and treated as non-judicial."' 59 The primary judge distinguished that decision as the jurisdiction exercised in the present case by the AIRC was not a jurisdiction with respect to industrial disputes extending beyond the limits of any one State, but, rather, a jurisdiction based upon s 51(xx) of the Constitution, and that s 170CG(3) requires the AIRC to do precisely that which von Doussa J considered to be beyond the AIRC's power under the earlier statutory regime, namely, to determine the matters touching on the applicant's existing legal rights. If correct, that finding would provoke consideration of Ch III of the Constitution. It is not readily apparent why the different constitutional head of power underpinning the legislation relevantly affects the function being performed so as to distinguish a case like the present from that considered by von Doussa J. We examine the effect of s 170CG(3) later. In our opinion, there is nothing in Miller v Australian Industrial Relations Commission (2001) 108 FCR 192 to the contrary of our conclusion as to that question. 60 In WJ & F Barnes Pty Ltd v Federal Commissioner of Taxation (1957) 96 CLR 294, Kitto J, in relation to a decision of a Taxation Board of Review, said (at 314-5): 'We know that the board of review, when considering the company's assessment to ordinary income tax, considered that the payments were not allowable deductions on any ground. The board's decision was not, of course, an adjudication; it was administrative in character, and could not create an issue-estoppel.' 61 The application of issue estoppel to decisions of the Commonwealth Administrative Appeals Tribunal was expressly left open by the Full Court in Commonwealth v Sciacca (1988) 17 FCR 476 at 480. Reference was made in that case to the earlier decision of the Full Court in Minister for Immigration & Ethnic Affairs v Daniele (1981) 61 FLR 354, in which it might be thought that a passage from the reasons of Fisher and Lockhart JJ (at 359) indicated that issue estoppel had no place in the proceedings of the Administrative Appeals Tribunal. See the analysis by Pincus J in Bogaards v McMahon (1988) 80 ALR 342 (at 349-352), where his Honour concluded that, based upon Daera Guba, cause of action estoppel may apply to the decisions of the Administrative Appeals Tribunal, but left open the question of issue estoppel. See also the following: the discussion by Gummow J in Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 522-526; Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 per Ryan J at 201-202 and Gummow J at 219; Hill J in Midland Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87 at 96-99; National Union of Workers v Pacific Dunlop Tyres Pty Ltd (1992) 37 FCR 419 at 428; Comcare v Grimes (1994) 50 FCR 60 at 64, 67; Weinberg J in Bramwell v Repatriation Commission (1998) 158 ALR 623 at 635-637, Morales v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 374 at 387G-388C, and Lilienthal v Migration Agents Registration Authority (2001) 65 ALD 437. Most recently, the Full Court in Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd (2003) FCAFC 18 said: '12. Mansfield J held that the effect of that finding by the Full Commission was that the appellant was estopped from challenging its finding in these proceedings. We are not prepared to do so. It is clear that a party will be estopped from arguing that which has already been decided against him or her, even by a different court. This can also extend to decisions by a tribunal where such a tribunal has the capacity to make final and binding decisions: see Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353. The issue raised in this case is whether there can be any issue estoppel in respect of the determinations of a Commonwealth administrative body. Such bodies cannot exercise the judicial power of the Commonwealth. Can they nevertheless make a determination that is sufficiently "final" and "determinative" to give rise to an issue estoppel? There are two chains of authority. The first denies that they can. The relevant cases are discussed by Weinberg J in Bramwell v Repatriation Commission (1998) 158 ALR 623 at 635-637. The second says that they can, particularly where the power being exercised is very similar to judicial power: see Branson J in Miller v University of New South Wales [2002] FCA 882 at [68]-[77]. 13. It is unnecessary for us to resolve these differences. What is absolutely clear is that the decision of an administrative tribunal in respect of a "jurisdictional fact" is neither conclusive, nor binding: see Craig v South Australia (1995) 184 CLR 163 at 179. The decision in this instance was given in relation to what was clearly a "jurisdictional fact" i.e. the question whether the termination of employment was on or before or was after 30 March, 1994. The decision of the AIRC on that matter could not be conclusive. Consequently the decision of the AIRC of 1 March, 2002 that the contract of employment was terminated on 16 March, 1994 does not have the effect that the appellant can not argue to the contrary in this Court. There is no issue estoppel.' The primary judge in that case had decided consistently with the primary decision here, having referred to that decision. 62 Reference should also be made to the decision of the Full Court in Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123, where Davies J said at 127 (in a passage agreed in by Spender J): 'On 9 March 1995, prior to the hearing before the Tribunal, Fryberg J. of the Supreme Court of Queensland had refused an application brought by Mr Sande and the Australian Institute of Conveyancers Inc which sought a declaration, inter alia, that on the true construction of the MR Act the occupation of "conveyancer" existed in the State of Queensland and was an occupation within the definition of "occupation" in s.4(1) of the MR Act. No evidence was put before his Honour, however, to indicate whether, as a question of fact, there was in Queensland an occupation, trade, profession or calling of "conveyancer". His Honour considered that he could not infer the existence of the occupation as a matter of present fact from the references or assumptions in statutes dating from 1867 onwards. His Honour declined to make the declaration sought. The respondents in this appeal relied upon his Honour's judgment as an issue estoppel against Mr Sande. I do not so regard it. The decision-making powers were conferred by the MR Act upon the registration authorities and the Tribunal, not the courts. The Supreme Court may well have had a review function in relation to decisions of its Registrar. But, even so, it was concerned only with decision-making at the first level. The function of the Tribunal was to form its own view and to come to the "correct or preferable" decision: Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589. The Tribunal was therefore bound to arrive at its own finding of fact.' 63 It is clear enough that it is difficult, if not impossible, to reconcile all that has been said in this array of authority. 64 Cases which concern a tribunal which is truly administrative in the sense that it stands in the shoes of the original administrative decision-maker, and has power to substitute its own decision for the original decision, may be left to one side for present purposes, as this is not such a case. The bald statement by Kitto J in Barnes v Federal Commissioner of Taxation and the finding by Davies and Spender JJ in Sande may be decisive of such a case, at least at the level of this Court, although it will be necessary to consider the implications of the decision of the House of Lords in Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 in an appropriate case (cf R v East Sussex County Council; Ex parte Reprotech (Pebsham) Ltd [2002] 4 All ER 58, [2003] 1 WLR 348). Decisions of the AIRC in the exercise of what might be called its ordinary jurisdiction of settling multi-party industrial disputes may also be left to one side for present purposes. 65 Whilst estoppels may arise from decisions of bodies other than superior courts of record, and the language of res judicata, including cause of action estoppel and issue estoppel, is used in this connection, the starting point is to decide precisely what jurisdiction the body is exercising, as lucidly explained by Jordan CJ in Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson at 19-20 as follows (omitting citation of authority): 'But in order that a judicial decision may involve an estoppel as to the matter decided, it is necessary that the tribunal should possess jurisdiction to decide the matter conclusively and for all purposes between the parties, and not merely incidentally and for a limited purpose. In the case of a superior Court, difficulties can seldom arise as to whether estoppel attaches to matters which have been expressly or impliedly decided for the purpose of the direct and immediate decision. This is by reason of the rule that "nothing shall be intended to be out of the jurisdiction of a superior Court, but that which specially appears to be so". But difficulties do occur in the case of subordinate tribunals. Where these have been invested with a general, though limited jurisdiction, matters incidentally decided are res judicatae if they are comprised within the limits of the general jurisdiction of the tribunal. Where, however, a special jurisdiction is conferred upon a subordinate tribunal to decide some one particular class of matter, the conferring of jurisdiction, although it authorises the tribunal to decide any other matters so far as may be necessary for the exercise of the jurisdiction so conferred, is not regarded as investing it with jurisdiction to decide those matters between the parties conclusively and for all purposes. Such matters are collateral to the matter as to which jurisdiction is conferred. In a particular case it may appear from the Statute conferring the jurisdiction that it is intended that the tribunal shall have jurisdiction to determine the collateral matter only provisionally and subject to control by means of the prerogative writs. Or it may appear to be intended that the tribunal is to determine the collateral matters conclusively so far as any control by superior Courts is concerned. But unless an intention appears to confer jurisdiction to determine the collateral matters inter partes conclusively and for all purposes, a decision of the tribunal upon a collateral matter lying outside its special jurisdiction creates no estoppel, notwithstanding that the matter was raised and that it was necessary to form an opinion upon it for the purpose of deciding the matter in which the tribunal is invested with special jurisdiction. The reason is that no estoppel can arise from a decision by a tribunal of limited jurisdiction of a matter lying outside its jurisdiction.' 66 The actual decision in that case is also instructive. By s 68 of the then Commonwealth Conciliation & Arbitration Act, fines, fees, levies or dues payable by a member to a registered organisation could be recovered from such member in any court of competent jurisdiction. A proceeding for recovery was brought in a New South Wales Court of Petty Sessions constituted by a magistrate. By reason of a particular provision, such a magistrate had no jurisdiction to proceed if, in order to determine the question of liability in a particular case, it was necessary to decide any matter the decision of which may bind rights in the future. That made it necessary for the New South Wales Supreme Court to consider the extent to which a decision of a Court of Petty Sessions in a proceeding under s 68 was capable of giving rise to res judicata. Jordan CJ (in a judgment agreed in by Halse Rogers and Maxwell JJ) held (at 21): 'No jurisdiction is expressed to be conferred upon a Court of Petty Sessions to determine whether the claimant organisation has been duly registered or proclaimed, or whether the defendant is a member thereof, or whether its rules are valid. No doubt, it may in a particular case be necessary for a magistrate to form an opinion upon some or all of these matters for the purpose of deciding the matter which he is invested with jurisdiction to decide; but any opinion which he may so form does not constitute a judicial decision inter partes, and does not bind the parties in any future proceedings whether before the same magistrate or in any other Court of Petty Sessions. It follows that no determination as to whether the defendant was or is a member of the union which the magistrate may arrive at for the purpose of deciding whether the particular amount claimed is due and owing can have the effect of res judicata for any other purpose; and cannot therefore bind future rights; …' 67 That decision, and the like decision in Attorney-General for Trinidad & Tobago v Eriche [1893] AC 518, were referred to by McHugh JA (as he then was) in Cachia v Isaacs at 387. The division of opinion in that case indicates the subtlety of the point. 68 In Weist v DPP, Gummow J, at 525, referred to the judgment of Jordan CJ in Ex parte Amalgamated Engineering Union and said: 'Whatever view is taken of the general applicability of the principles of issue estoppel in administrative law, there will always be the threshold question as to the width and effect of the decision-making power entrusted by the legislature to the body in question.' His Honour had earlier said (at 522): 'Legislation may validly commit to a decision-maker exercising administrative powers the authority to decide disputed issues of fact, and to do so finally in the sense that the decision is not subject to collateral attack. Such decision-making authority is not exclusively judicial in character.' 69 A clear understanding of the jurisdiction which was exercised by the AIRC in the present case is needed. It was to determine by arbitration whether the termination of the employment of the appellant by the respondent was "harsh, unjust or unreasonable" (s 170CG). If that determination had been made, then the remedies provided for by s 170CH might have been afforded. It is that determination and those remedies, if granted, which are final and binding between the parties pursuant to s 170CI. The statutory criterion, particularly read in the light of the object of the Division set out in s 170CA(2), is very broad. It is quite separate from any question of lawfulness. The matters to which the AIRC must have regard by reason of s 170CG(3) do not change the nature of the value judgment to be made, and, as is shown by s 170CG(3)(e), are not limiting factors. The reference to "valid reason" in s 170CG(3)(a) does not refer to a lawful reason as such, but relates validity to the topics itemised in that subsection. 70 The issue which traditionally arises in the kind of jurisdiction which is exercised by the AIRC has been described as: '… not indeed a question as to their [the employee's and employer's] respective legal rights, but a question whether the legal right of the employer has been exercised so harshly or oppressively against the employee as to amount to an abuse of that right.' and as: '… what the employer ought to do or ought to have done rather than what he has or had the "right" to do.' (per Walsh J in North West County Council v Dunn (1971) 126 CLR 247 at 263; to the same effect see also per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ in Victoria v Commonwealth (1995) 187 CLR 416 at 517). 71 By contrast, if the dismissal is unlawful as in breach of contract, statute, award or certified agreement, then proceedings can be brought in the Courts to vindicate the right. 72 The analysis by the High Court of a previous form of the legislation in Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 is instructive. We refer particularly to this passage from the joint judgment of the whole Court at 665-667: 'Ordinarily, in industrial tribunals empowered to order reinstatement, the criterion for the making of an order for reinstatement is that the dismissal was harsh, unjust or unreasonable, although more recently the tendency has been to express the test in terms of unfairness: See In re Loty and Holloway and Australian Workers' Union. In the present case the Union and the Society each claimed that the dismissals which gave rise to their claim were harsh, unjust and unreasonable. Accordingly it was said that the resolution of the dispute necessarily involved the determination of whether the dismissals were harsh, unjust or unreasonable - a determination which, it was argued, required the Commission, in the context of the award, to determine whether the employer was in breach of the obligation contained in cl.7(d)(vi). This, it was contended, necessarily involved an assumption of the judicial power of the Commonwealth, for it involved the Commission in precisely the same task as would be undertaken by a Court in the event that proceedings were taken pursuant to s 119 of the Act alleging breach of cl.7(d)(vi) of the Award.

It is well settled that functions "may be classified as either judicial or administrative according to the way in which they are to be exercised": The Queen v Hegarty; Ex parte City of Salisbury per Mason J; see also Federal Commissioner of Taxation v Munro per Isaacs J; The Queen v Spicer; Ex parte Australian Builders' Labourers' Federation per McTiernan J and Kitto J; Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd. A finding that a dismissal is harsh, unjust or unreasonable involves the finding of relevant facts and the formation and expression of a value judgment in the context of the facts so found. Although findings of fact are a common ingredient in the exercise of judicial power, such findings may also be an element in the exercise of administrative, executive and arbitral powers: see The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd per McTiernan J and The Queen v. Hegarty; Ex parte City of Salisbury, per Murphy J. So too with the formation and expression of value judgments.

In our view the fact that the Commission is involved in making a determination of matters that could have been made by a court in the course of proceedings instituted under s 119 of the Act does not ipso facto mean that the Commission has usurped judicial power, for the purpose of inquiry and determination is necessarily different depending on whether the task is undertaken by the Commission or by a court. The purpose of the Commission's inquiry is to determine whether rights and obligations should be created. The purpose of a court's inquiry and determination is to decide whether a pre-existing legal obligation has been breached, and if so, what penalty should attach to the breach.

The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration.

Inquiry into and determination of facts for the purpose of ascertaining what rights and obligations should be brought into existence in settlement of an industrial dispute does not cease to be an exercise of arbitral power merely because, in the course thereof, the Commission may form an opinion as to the existing legal rights and obligations of the parties. As was pointed out in Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd, the formation of an opinion as to legal rights and obligations does not involve the exercise of judicial power, at least if it is "a step in arriving at the ultimate conclusions on which (is based) the making of an award intended to regulate the future rights of the parties". For, as was there made clear, "the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights."

It follows in our opinion that the dispute notified to the Commission is a dispute capable of resolution by the exercise of arbitral power. The resolution of the dispute does not involve the assumption of judicial power not possessed by the Commission, notwithstanding that in the course of the resolution of the dispute the Commission may undertake similar inquiries and determine similar questions of fact as would be made and determined in proceedings brought for the enforcement of the Award pursuant to s 119 of the Act, and notwithstanding that in the course thereof it may form an opinion as to the legal rights and obligations of the parties.

It must be acknowledged that where an award seeks to impose limits upon the right of an employer to terminate employment, there exists a potential for inconvenience and embarrassment if proceedings are brought under s.119 of the Act and are concurrently brought in the Commission to create new rights and obligations by reference to the same issues which fall for determination in s.119 proceedings. To some extent that potential will be minimized by reason that considerations other than unfairness will be relevant in determining whether an award should be made creating an obligation upon an employer to reinstate an employee. In some cases the nature of the relationship necessary for the proper performance of the work will render the making of an award for reinstatement undesirable. However, in other cases where enforcement or other legal proceedings are available or current, this will be a matter to be taken into account by the Commission in deciding pursuant to s.41(1)(d)(iii) of the Act whether it should refrain from further hearing or determining the dispute on the ground that further proceedings are not desirable in the public interest.' (footnotes omitted) (See also Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 per Gaudron J at 360-361; [15]-[19].) 73 In our opinion, the only matter which is committed to the decision of the AIRC in the sense explained by Jordan CJ is whether the termination was harsh, unjust or unreasonable. It may be accepted, for the purposes of argument, that the AIRC decision conclusively decided that the termination was not harsh, unjust or unreasonable. It is that which is given finality by s 170CI, subject to s 170JD. Any findings made by the AIRC in the course of reasoning towards the ultimate decision do not give rise to any issue estoppel. 74 The primary judge's finding that the AIRC decision gave rise to issue estoppel was expressed to be in agreement with some remarks of Moore J in Blagojevch v Australian Industrial Relations Commission (2000) 98 FCR 45 at 50; [14], where his Honour said: 'However, in my opinion, different considerations arise in relation to the arbitration of a claim in which it is alleged that the termination of an employee's employment has been harsh, unjust or unreasonable. That enquiry falls, in my opinion, squarely within the observations of Gibbs J in Administration of Papua and New Guinea v Guba …' That may be correct, so far as it goes. However, Daera Guba was a case of res judicata in the sense of cause of action estoppel, rather than issue estoppel. 75 The primary judge held that the decision of the AIRC conclusively determined that the direction given to the appellant to assume the disputed duties was both reasonable and lawful, that there was conduct on the part of the appellant amounting to serious misconduct, namely, conduct constituting a serious breach of contract in evincing an intention no longer to be bound by the contract, and that there existed a valid reason under the Certified Agreement for the termination of the appellant's employment by the respondent. In our opinion, these were merely steps along the way to the value judgment which had to be made in exercise of the only jurisdiction given to the AIRC, and could give rise to no estoppel. None of them was the necessary foundation of the ultimate decision. There was no jurisdiction to make such findings conclusively. Put another way, the question as to whether the termination was harsh, unjust or unreasonable will not be litigated in this proceeding in determining any of the pleaded remedies. We do not agree that this analysis is contrary to what was decided by Edwards v Giudice (1999) 94 FCR 561. It may be that the different legislation considered in Green v Hampshire County Council enables that decision to be distinguished. If not, we respectfully disagree with it. 76 Since writing the foregoing, we have had the advantage of reading the analysis by Gray J of the role and function of the AIRC under Div 3 of Pt VIA of the Act (see [10]-[18]), and respectfully agree with it.

Abuse of Process 77 The primary judge held that, even if there were no estoppel, the pursuit of each of the claims for relief would constitute an abuse of process, as it was sought to litigate anew the case disposed of by the AIRC, citing Walton v Gardiner (1992) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 393. In that passage, their Honours said: '… 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.' The authorities cited in support of this statement were Reichel v Magrath (1889) 14 App Cas 665 at 668 and Connelly v Director of Public Prosecutions [1964] AC 1254 at 1361-1362. Their Honours also approved the following explanation of the jurisdiction by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536: '… the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.' Their Honours also referred to the decision of the High Court in Jago v District Court (NSW) (1989) 168 CLR 23 particularly per Mason CJ at 28, Deane J at 58 and Gaudron J at 74, which stressed the power of the Court to control its own process and proceedings if the administration of justice requires, without being restricted to defined or closed categories. 78 In Reichel v Magrath the appellant brought an action against his Bishop and the patrons of a benefice claiming a declaration that he was vicar of the benefice, that an instrument of resignation which he had executed was void, and an injunction to restrain the Bishop from instituting, and the patrons from presenting, any other person to the benefice. The action was tried and judgment was given against the appellant, on the ground that the vicarage was void by reason of his resignation thereof with the consent of the Bishop. Afterwards, the respondent, having been duly appointed to the benefice as the appellant's successor, brought an action against the appellant claiming a declaration that the respondent was vicar, and a perpetual injunction to restrain the appellant from depriving the respondent of the use and occupation of the house and lands. In his statement of defence, the appellant set up the same case as that on which he had been defeated in the action in which he was plaintiff. Thus, precisely the same question on precisely the same facts was posed for determination - namely, whether the appellant had validly resigned. A court of record had decided, in a properly constituted suit, that the appellant was no longer the vicar. The only reason that there was no issue estoppel was that the parties were different. This decision has been described as the paradigm example of this kind of abuse of process (per McHugh J in Rogers v The Queen (1994) 181 CLR 251 at 287), although there is another possible analysis of it (see per Handley JA in Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 at 202; [16]). 79 Connelly v Director of Public Prosecutions is one of a line of cases, including Hunter v Chief Constable of the West Midlands Police and Rogers v R (1994) 181 CLR 251, which deal with issue estoppel and abuse of process in relation to criminal proceedings. They are of little direct assistance in relation to the present problem. 80 Since the resuscitation of findings of abuse of process, there has been a plethora of attempts, successful and unsuccessful, to utilise it in Australia and England. Many of the relevant authorities were collected by Allsop J in Michaels v Commonwealth of Australia [2002] FCA 1130. An interesting application of the principle (together with the related Anshun estoppel) is the decision of the New South Wales Court of Appeal in Rippon v Chilcotin Pty Ltd. The House of Lords recently looked at a similar issue in Johnson v Gore Wood & Co [2002] 2 AC 1, particularly per Lord Bingham at 22-34, although Reichel v Magrath was not referred to. Consideration, rather, focused upon what was described as the Henderson v Henderson abuse of process, which has common parentage with the Anshun estoppel. Lord Bingham, at 31, said: 'But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.' Lord Bingham also gave a timely reminder of the need for caution in shutting out a party from bringing forward a genuine subject of litigation (at 22C, 24A). 81 In our opinion, there is considerable difficulty in finding a proper basis for the concept of staying proceedings as an abuse of process upon the ground of relitigation in the case of proceedings between the same parties which goes beyond the effect of res judicata, issue estoppel and Anshun estoppel (incorporating the English Henderson v Henderson estoppel); (see the illuminating discussion of the broad topic by the learned author of The Doctrine of Res Judicata 3rd ed, ch 26). Indeed, if the principle is so broad, it is difficult to understand why the various kinds of estoppel are maintained at all. In our view, near enough to an estoppel is not good enough to establish abuse of process between the same parties without some other element being present. There is the danger that persistent or unattractive litigants with awkward cases might be refused access to the courts if there is a broad and imprecise discretion to stay actions which are somewhat like a previous proceeding. 82 In our opinion, the present proceeding is not an attempt to litigate again matters which have been decided against the appellant in the relevant sense. As we have endeavoured to explain, a proceeding in the AIRC for relief on the ground that termination of employment was harsh, unjust or unreasonable is quite different in kind from the jurisdiction which the Court is being asked to exercise in this proceeding. The criterion for relief is different. The remedies available pursuant to s 170CH, including reinstatement and continuity of employment, are not available to the Court. Correspondingly, the relief sought in this proceeding was not available to the AIRC, although there could be the potential for overlap in relation to monetary compensation. The substance of the present proceeding could not have been combined with the proceeding in the AIRC. The separate statutory claims pursuant to ss 413 and 413A and the common law claim are not within the jurisdiction of the AIRC. We thus conclude that the ground upon which the proceeding was stayed was not available. No alternative basis for a finding of abuse of process is suggested. 83 We recognise that there will be a good deal of overlap between the facts and questions to be considered in this proceeding and the facts and questions considered by the AIRC. It is possible that the Court may take a different view of some or all of these facts or questions from that taken by the AIRC. These circumstances, whilst perhaps unfortunate, do not establish an abuse of process by the appellant. Indeed, they are the direct result of a legislative choice of different tribunals for different issues and are the natural result of the federal constitutional arrangements as presently understood. The legislature has established alternative remedies, which are to be pursued in different places, which, in turn, exist side by side with the common law remedy. Subject to the express provisions of the Act, an employee is free to choose which remedy to pursue first. If that does not prove successful, then the alternative remedy may be pursued. If the remedies cannot be pursued together, then they must be pursued successively. There will be no inconsistency in judgment, as we have explained in dealing with issue estoppel. 84 Nothing we have said should be understood as countenancing the view that all remedies available to the employee should not be pursued at the one time to the extent possible once there is a proceeding in either the AIRC or the Court. It is also obvious that quite different issues as to abuse of process may arise if the employee is successful in the first proceeding which is taken. We also recognise that the history of this litigation involves an expenditure of time and resources, public and private, which might well be seen as out of all proportion to the issue to be determined, and that pursuit of this proceeding will considerably add to the tally. We also appreciate that the respondent will inevitably be put to considerable expense, with considerable resources diverted, even in the event of success, and, to that extent, will be vexed. So, however, would the appellant if he were prevented from bringing a claim which he could not have brought in conjunction with the claim he lost. In any event, the point loses much of its force in the present case where, at least by the time the matter reached the Full Bench of the AIRC, the appellant had applied to adjourn the AIRC proceedings in order to pursue the Court proceeding. The adjournment was opposed by the respondent, and refused. Further, it cannot be suggested that the appellant has brought a series of hopeless proceedings. He has had a measure of success when the forensic history is considered. 85 There was discussion during the appeal as to whether the Court has a discretion as to whether to exercise the jurisdiction conferred by s 413 and s 413A of the Act, and further submissions have been received on that point. In view of our conclusion that the matter should proceed in the usual way, it is not necessary for us to consider that question at this stage. Neither is it necessary to consider the interesting arguments advanced by counsel as to the effect of Ch III of the Constitution. 86 The appeal should be allowed; the order of 16 July 2002 permanently staying the proceeding should be set aside; and in lieu thereof it should be ordered that the respondent's amended notice of motion for a stay be dismissed. We do not understand any application for costs to be made, no doubt in view of s 347 of the Act. If that is wrong, a motion for costs should be filed and served within seven days of the date of this judgment. The proceeding will be remitted to the docket judge to proceed in the normal way, to the extent that it is not barred by findings of the primary judge not affected by these reasons. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan and Gyles.

Counsel for the Appellant: RC Kenzie QC, C Howell

Solicitor for the Appellant: RL Whyburn & Associates

Counsel for the Respondent: RM Goot SC, SEJ Prince

Solicitor for the Respondent: Minter Ellison

Counsel for the Attorney-General (intervening): H Burmester QC, G Hill

Solicitor for the Attorney-General (intervening): Australian Government Solicitor

Date of Hearing: 7, 26 March 2003

Date of Judgment: 14 August 2003

170CA Object (1) The principal object of this Division is: (a) to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee's employment in certain circumstances; and (b) to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought; and (c) to provide for remedies appropriate to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable; and (d) to provide for sanctions where, on recourse to a court, a termination or proposed termination is found to be unlawful; and (e) by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivisions D and E, to assist in giving effect to the Termination of Employment Convention. (2) The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a "fair go all round" is accorded to both the employer and employee concerned. … 170CE Application to Commission to deal with termination under this Subdivision (1) Subject to subsections (5) and (5A), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment: (a) on the ground that the termination was harsh, unjust or unreasonable; or (b) on the ground of an alleged contravention of section 170CK, 170CL, 170CM or 170CN; or (c) on any combination of grounds in paragraph (b) or on a ground or grounds in paragraph (b) and the ground in paragraph (a). … (5) An application under subsection (1) may not be made: (a) On the ground referred to in paragraph (1)(a) or on grounds that include that ground - unless, under subsection 170CB(1), Subdivision B applies to that application; or (b) on a ground referred to in paragraph (1)(b) - unless Subdivision C applies to that application. … 170CF Conciliation (1) When an application is lodged with the Commission, the Commission must attempt to settle the matter to which the application relates by conciliation. (2) If the Commission is satisfied that all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful so far as concerns at least one ground of the application, the Commission: (a) must issue a certificate in writing stating that it is so satisfied in respect of that ground or each such ground; and (b) must indicate to the parties the Commission's assessment of the merits of the application in so far as it relates to that ground or to each such ground; and (c) if the Commission thinks fit, may recommend that the applicant elect not to pursue a ground or grounds of the application (whether or not also recommending other means of resolving the matter); and (d) if the Commission considers, having regard to all the materials before the Commission, that the application has no reasonable prospect of success, it must advise the parties accordingly. (3) If: (a) the ground or one of the grounds of the application is the ground referred to in paragraph 170CE(1)(a); and (b) the Commission has indicated that the applicant's claim in respect of the ground so referred has no reasonable prospect of success; the Commission must invite the applicant to provide further information in support of that ground within a period specified by the Commission. (4) If, in relation to an application to which subsection (3) applies: (a) the applicant does not provide further information regarding the applicant's claim in respect of the ground referred to in paragraph 170CE(1)(a); or (b) after consideration of the original application and the further material provided by the applicant in support of that ground; the Commission concludes that the application has no reasonable prospect of success at arbitration, it must issue a certificate to that effect. (5) If the Commission issues a certificate under subsection (4) in respect of an applicant's claim in respect of the ground referred to in paragraph 170CE(1)(a), the application is dismissed, insofar as it relates to that ground, with effect from the date of issue of the certificate. … 170CG Arbitration (1) If: (a) the Commission has issued a certificate under subsection 170CF(2) regarding conciliation of an application relating to a termination of employment; and (b) the applicant has made an election under subsection 170CFA(1), (2), (3) or (5) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable; the Commission may so proceed to arbitrate the matter. (2) Neither the making of an election under subsection 170CFA(1), (2), (3) or (5) to proceed to arbitration nor the commencement of that arbitration prevents further conciliation of the matter being attempted, or the parties from settling the matter, at any time before an order is made under section 170CH. (3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to: (a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and (b) whether the employee was notified of that reason; and (c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and (d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and (da) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (e) any other matters that the Commission considers relevant. 170CH Remedies on arbitration (1) Subject to this section, the Commission may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (6) if it has determined that the termination was harsh, unjust or unreasonable. (2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including: (a) the effect of the order on the viability of the employer's undertaking, establishment or service; and (b) the length of the employee's service with the employer; and (c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and (d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and (e) any other matter that the Commission considers relevant; that the remedy ordered is appropriate. (3) If the Commission considers it appropriate, the Commission may make an order requiring the employer to reinstate the employee by: (a) reappointing the employee to the position in which the employee was employed immediately before the termination. (b) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination. (4) If the Commission makes an order under subsection (3) and considers it appropriate to do so, the Commission may also make: (a) any order that the Commission thinks appropriate to maintain the continuity of the employee's employment; and (b) subject to subsection (5) - any order that the Commission thinks appropriate to cause the employer to pay to the employee an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination. (5) If, as a result of an application under section 170CP, a court has awarded an amount of damages for a failure to give notice of a termination as required by section 170CM, any amount ordered to be paid by the Commission under paragraph (4)(b) in respect of the termination is to be reduced accordingly. (6) If the Commission thinks that the reinstatement of the employee is inappropriate, the Commission may, if the Commission considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay the employee an amount ordered by the Commission in lieu of reinstatement. (7) Subject to subsection (8), in determining an amount for the purposes of an order under subsection (6), the Commission must have regard to all the circumstances of the case including: (a) the effect of the order on the viability of the employer's undertaking, establishment or service; and (b) the length of the employee's service with the employer; and (c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and (d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and (e) any other matter that the Commission considers relevant. (8) In fixing an amount under subsection (6) for an employee who was employed under award conditions immediately before the termination, the Commission must not fix an amount that exceeds the total of the following amounts: (a) the total amount of remuneration: (i) received by the employee; or (ii) to which the employee was entitled; (whichever is higher) for any period of employment with the employer during the period of 6 months immediately before the termination (other than any period of leave without full pay); and (b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations. (9) In fixing an amount under subsection (6) for an employee who was not employed under award conditions immediately before the termination, the Commission must not fix an amount that exceeds: (a) the total of the amounts determined under subsection (8) if the employee were an employee covered by the subsection; or (b) the amount of $32,000, as indexed from time to time in accordance with a formula prescribed by the regulations; whichever is the lower amount. (10) For the avoidance of doubt, an order by the Commission under paragraph (4)(b) or under subsection (6) may permit the employer concerned to pay the amount required in instalments specified in the order. … 170CI Orders made on arbitration are binding Subject to any right of appeal to a Full Bench of the Commission, an order made by the Commission under section 170CH is final and binding between the parties. … 170CK Employment not to be terminated on certain grounds … (2) Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: (a) temporary absence from work because of illness or injury within the meaning of the regulations; (b) trade union membership or participation in trade union activities outside working hours or, with the employer's consent, during working hours; (c) non-membership of a trade union; (d) seeking office as, or acting or having acted in the capacity of, a representative of employees; (e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; (g) refusing to negotiate in connection with, make, sign, extend, vary or terminate an AWA; (h) absence from work during maternity leave or other parental leave. … 170CM Employer to give notice of termination (1) Subject to subsection (8), an employer must not terminate an employee's employment unless: (a) the employee has been given the required period of notice (see subsections (2) and (3)); or (b) the employee has been paid the required amount of compensation instead of notice (see subsections (4) and (5)); or (c) the employee is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue the employment of the employee concerned during the required period of notice (see subsection (7)). (2) The required period of notice is to be worked out as follows: (a) first work out the period of notice using the table at the end of this subsection; and (b) then increase the period of notice by 1 week if the employee: (i) is over 45 years old; and (ii) has completed at least 2 years of continuous service with the employer. Employee's period of continuous service with the employer Period of notice Not more than 1 year At least 1 week More than 1 year but not more than 3 years At least 2 weeks More than 3 years but not more than 5 years At least 3 weeks More than 5 years At least 4 weeks

(3) For the purposes of subsection (2), the regulations may prescribe events or other maters that must be disregarded, or must in prescribed circumstances be disregarded, in ascertaining a period of continuous service. (4) The required amount of compensation instead of notice must equal or exceed the total of all amounts that, if the employee's employment had continued until the end of the required period of notice, the employer would have become liable to pay to the employee because of the employment continuing during that period. (5) That total must be worked out on the basis of: (a) the employee's ordinary hours of work (even if they are not standard hours); and (b) the amounts ordinarily payable to the employee in respect of those hours, including (for example) allowances, loading and penalties; and (c) any other amounts payable under the employee's contract of employment. (6) The regulations may make provision for or in relation to amounts that are taken to be payable under a contract of employment for the purposes of paragraph (5)(c) in relation to an employee whose remuneration before the termination was determined wholly or partly on the basis of commission or piece rates. (7) Without limiting the generality of the reference to serious misconduct in paragraph (1)(c), the regulations may identify: (a) particular conduct; or (b) conduct in particular circumstances; that falls within that reference. (8) The regulations may exclude from the operation of this section terminations of employment occurring in specified circumstances that relate to the succession, assignment or transmission of the business of the employer concerned. … 170CP Application to courts in relation to alleged contravention of section 170CK, 170CL, 170CM or 170CN (1) Subject to subsection (5), an employee may apply under this section to the Court for an order under section 170CR in respect of an alleged contravention of one or more of sections 170CK, 170CL and 170CN by his or her employer. … (5) An application under subsection (1), (2), (3) or (4) in respect of an alleged contravention of section 170CK, 170CL, 170CM or 170CN may not be made to a court unless the applicant: (a) has received a certificate under subsection 170CF(2) regarding conciliation of an application made wholly or partly on the ground of the alleged contravention; and (b) has elected under section 170CFA to begin proceedings in that court for an order under section 170CR in respect of the alleged contravention. (6) The application must be made within 14 days after the lodgment of an election under subsection 170CFA(6), or within such period as a court allows on an application made during or after those 14 days. … 170CR Orders available to courts (1) If the Court is satisfied that an employer has contravened section 170CK or 170CN in relation to the termination of employment of an employee, the Court may make one or more of the following orders: (a) an order imposing on the employer a penalty of not more than $10,000; (b) an order requiring the employer to reinstate the employee; (c) subject to subsection (2), an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate; (d) any other order that the Court thinks necessary to remedy the effect of such a termination; (e) any other consequential orders. … 170HA Division not to limit other rights Subject only to the operation of sections 170HB and 170HC, the provisions of this Division are not intended to limit any rights that a person or trade union may have to appeal against termination of employment or to secure the making of awards or orders relating to termination of employment. 170HB Applications alleging harsh, unjust or unreasonable termination (1) An application must not be made under section 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground, if proceedings (the prior proceedings) for a remedy in respect of that termination have been commenced by or on behalf of that employee: (a) under another provision of this Act; or (b) under another law of the Commonwealth; or (c) under a law of a State or Territory; alleging that the termination was: (d) harsh, unjust or unreasonable (however described); or (e) unlawful; for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination. (2) Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceedings: (a) have been discontinued by the party who began the proceedings; or (b) have failed for want of jurisdiction. (3) For the avoidance of doubt, a proceeding under this Act or any other law of the Commonwealth or under a law of a State or Territory seeking compensation, or the imposition of a penalty, because an employer has failed, in termination of employment, to meet an obligation: (a) to give adequate notice of the termination; or (b) to provide a severance payment as a result of the termination; or (c) to provide any other entitlement payable as a result of the termination; is taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on the termination. (4) If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before the application would, because of the operation of subsection (1), have prevented the application unless the application: (a) is discontinued by the applicant; or (b) fails for want of jurisdiction. 170HBA No second applications under section 170CE concerning same termination to be made An application must not be made under section 170CE in relation to a termination of employment of an employee where a previous application under section 170CE was made in respect of the same termination unless the second application corrects an error in the previous application, or the Commission considers that it would be fair to accept the second application. … 170HC Applications alleging contravention of section 170CK (1) An application must not be made under section 170CE on the ground that the termination of an employee's employment constitutes an alleged contravention of section 170CK because it was done for a reason set out in subsection 170CK(2) if proceedings (the prior proceedings) for a remedy in respect of that termination have been commenced by or on behalf of that employee: (a) under another provision of this Act; or (b) under another law of the Commonwealth; or (c) under a law of a State or Territory; alleging that the termination was unlawful because it was done for such a reason. (2) Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceedings: (a) have been discontinued by the party who began the proceedings; or (b) have failed for want of jurisdiction. (3) If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before that application would, because of the operation of subsection (1), have prevented that application unless the application: (a) is discontinued by the applicant; or (b) fails for want of jurisdiction.

170JD Variation and revocation of orders (1) The Commission may vary or revoke an order under this Part on application by: (a) any employer, or representative of an employer, covered by the order (whether or not named or described in the order); or (b) any employee, or representative of any employee, to whom the order relates (whether or not named or described in the order). (2) If the Commission is satisfied, on an application under this section, that an order under Division 2 should be varied or revoked because of a change in circumstances, the Commission must vary or revoke the order accordingly. (3) Subsection (2) does not limit the Commission's powers under subsection (1). …

178 Imposition and recovery of penalties (1) Where an organisation or person bound by an award, an order of the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise) or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or by a court of competent jurisdiction. (2) Subject to subsection (3), where: (a) 2 or more breaches of a term of an award, order or agreement are committed by the same organisation or person; and (b) the breaches arose out of a course of conduct by the organisation or person; the breaches shall, for the purposes of this section, be taken to constitute a single breach of the term. (3) Subsection (2) does not apply in relation to: (a) a breach of a term of an award, order or agreement that is committed by an organisation or person after a court has imposed a penalty on the organisation or person for an earlier breach of the term; or (b) a breach of a term of an award or order that is taken to have been committed by a person under a provision included in an award or order under paragraph 111(1)(e). (4) The maximum penalty that may be imposed under subsection (1) for a breach of a term of an award, order or agreement is: (a) where the penalty is imposed by the Court: (i) if the breach is taken to have been committed under a provision included in an award or order under paragraph 111(1)(e) - $5,000 for a body corporate or $1,000 in other cases; and (iia) if the breach is of a term of a certified agreement and continues for more than one day - the total of: (A) $10,000 for a body corporate or $2,000 in other cases; and (B) $5,000 for a body corporate, or $1,000 in other cases, for each day for which the breach continues; and (iib) if the breach is of a term of a certified agreement but subparagraph (iia) does not apply - $10,000 for a body corporate or $2,000 in other cases; and (ii) in any other case - $10,000 for a body corporate or $2,000 in other cases; and (b) where the penalty is not imposed by the Court - $10,000 for a body corporate or $2,000 in other cases. (4A) A certified agreement may provide that subparagraph (4)(a)(iia) applies to specified breaches of the agreement as if sub-subparagraph (4)(a)(iia)(B) referred to a specified amount that is greater or less than $5,000 for a body corporate, or $1,000 in other cases. If such an agreement so provides, paragraph (4)(a) has effect accordingly. (5) A penalty for a breach of a term of an award or order may be sued for and recovered by: (a) an inspector; (b) a party to the award or order; (c) an employer who is a member of an organisation and who is affected by the breach; (ca) a person: (i) whose employment is, or at the time of the breach was, subject (ii) who is affected by the breach; (d) an organisation that is affected, or any of whose members are affected, by the breach; or (e) an officer or employee of an organisation that is affected, or any of whose members are affected, by the breach where the officer or employee is authorised, under the rules of the organisation, to sue on behalf of the organisation. (5A) A penalty for a breach of a term of a certified agreement may be sued for and recovered by: (a) an inspector; or (b) an employee whose employment is subject to the agreement; or (c) a person or organisation that is bound by the agreement; or (d) an organisation: (i) that has at least one member whose employment is subject to the agreement; and (ii) that is entitled to represent the industrial interests of the member in relation to work carried on by the member that is subject to the agreement; or (e) an officer or employee of an organisation mentioned in paragraph (c) or (d), where the officer or employee is authorised, under the rules of the organisation, to sue on behalf of the organisation. (6) Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount that the employer was required to pay under an award, order or agreement, the court may order the employer to pay to the employee the amount of the underpayment. (6A) Where, in a proceeding against an employer under this section, it appears to the court concerned that the employer has not paid an amount to a superannuation fund that the employer was required, under an award, order or agreement, to pay on behalf of a person, the court may order the employer to make a payment to or in respect of that person for the purpose of restoring the person, as far as practicable, to the position that the person would have been in had the employer not failed to pay the amount to the superannuation fund. (6B) Without limiting the generality of subsection (6A), the court concerned may order that the employer pay to the superannuation fund referred to in subsection (6A), or another superannuation fund, an amount equal to the amount (in this subsection called the unpaid amount) that the employer failed to pay together with such additional amount as, in the opinion of the court, represents the return that would have accrued in respect of the unpaid amount had it been duly paid by the employer. (7) An order shall not be made under subsection (6) or (6A) in relation to so much of an underpayment as relates to any period more than 6 years before the commencement of the proceeding. (8) A proceeding under this section in relation to a breach of a term of an award, order or agreement shall be commenced not later than 6 years after the commission of the breach. (9) In this section (in its application to an order made under section 127B): employee includes an independent contractor; employer includes a person engaging an independent contractor. 179 Recovery of wages etc (1) Where an employer is required by an award, order or certified agreement to pay an amount to an employee, the employee may, not later than 6 years after the employer was required to make the payment to the employee under the award, order or agreement, sue for the amount of the payment in the Court or in any court of competent jurisdiction. (2) An employee is entitled to sue under subsection (1) whether the payment was required to be made before or after the commencement of section 11 of the Industrial Relations Legislation Amendment Act (No 2) 1990. (3) In this section (in its application to an order made under section 127B): employee includes an independent contractor; employer includes a person engaging an independent contractor.' …

413 Interpretation of awards (1) The Court may give an interpretation of an award on application by: (a) the Minister; or (b) an organisation or person bound by the award. (2) The decision of the Court is final and conclusive and is binding on the organisations and persons bound by the award who have been given an opportunity of being heard by the Court. 413A Interpretation of certified agreements (1) The Court may give an interpretation of a certified agreement on application by: (a) the Minister; or (b) an organisation or person bound by the certified agreement; or (c) an employee whose employment is subject to the agreement. (2) The decision of the Court is final and conclusive and is binding on: (a) the organisations and persons bound by the agreement; and (b) the employees whose employment is subject to the agreement; who have been given an opportunity of being heard by the Court.

APPENDIX 2 Relevant provisions of the University of New South Wales (Academic Staff) Enterprise Agreement 1997-1998 were as follows: '3.0 DEFINITIONS 3.1 In this Agreement the following definitions shall apply: … "disciplinary action" means action by the University to discipline a member of academic staff for unsatisfactory performance, misconduct or serious misconduct and is limited to: (i) formal censure or counseling; (ii) demotion by one or more classification levels or increments; (iii) withholding of an increment; (iv) suspension with or without pay; (v) termination of employment. … 3.2 The parties agree to discuss the development of further definitions for unsatisfactory performance and misconduct/serious misconduct and if agreement is reached the parties will apply for inclusion as a variation to this Agreement in accordance with section 170MD of the Workplace Relations Act 1996. … 14.0 TERMINATION OF EMPLOYMENT AND DISCIPLINARY ACTION This clause replaces in its entirety clauses 9, 11, 12, 13, 14 and 15 of the Universities and Post Compulsory Academic Conditions Award 1995. (a) All decisions to discipline or terminate the employment of an academic must be in accordance with this clause. (b) Except as specifically provided herein to the contrary, the terms of this Agreement shall cover exhaustively the subject matter concerned, and are to the exclusion of: (i) State and Territory law in respect of any matter subject to this Agreement; and (ii) any law of the Commonwealth or an internal Territory of the Commonwealth, in respect of which the Australian Industrial Relations Commission has power to make an award which is not consistent with that law by reason of section 121 of the Workplace Relations Act 1996 in respect of any matter subject to this Agreement to the extent that this Agreement is not consistent with that law. Provided that the provisions in this Agreement shall be subject to and shall not affect the operation of: (A) any law empowering a State or Commonwealth industrial tribunal to order re-instatement of or compensation to a staff member or to otherwise deal with the dismissal of that staff member; (B) any other law empowering any court or tribunal external to an employer which has jurisdiction to deal with any causes of action or claims arising from actions taken by the University pursuant to this agreement. (c) Any procedural requirements imposed by laws referred to in subclause (b) above are entirely displaced and extinguished by force of this Agreement. (d) The University must not terminate the employment of an academic unless the academic has been given notice and/or compensation as required by 170CM of the Workplace Relations Act 1966 provided that: (i) the University may terminate without notice the employment of an academic found to have engaged in conduct of a kind envisaged in section 170CM(1)(c) of the Workplace Relations Act 1966 such that it would be unreasonable to require the University to continue employment during a period of notice; (ii) greater notice and/or compensation specified in the academic's contract of employment or in the terms of the 1991 Academic Award Restructuring Agreement or in this Agreement shall prevail over section 170CM of the Workplace Relations Act 1966. (e) This Agreement is to be read in conjunction with Division 3 of Part VIA of the Workplace Relations Act 1996 provided that an academic shall be entitled to the benefit of: (i) any provision in this Agreement which is more favourable to the academic than any corresponding provision in the Workplace Relations Act 1996; (ii) any procedural step required by the Agreement in addition to the required procedural steps of the Workplace Relations Act 1996. (f) Disciplinary action should be used as a last resort. An academic supervisor must make every effort to resolve instances of possible misconduct or unsatisfactory performance through guidance, counseling and appropriate academic staff development, or appropriate work allocation before a possible report to the Vice-Chancellor. At the request of the academic a supervisor must consult with colleagues in the academic unit before making a formal report to the Vice-Chancellor under subclause 14.1(b). (g) Disciplinary action may only be taken by the Vice-Chancellor and only in accordance with this Agreement. (h) In cases involving misconduct, serious misconduct and unsatisfactory performance, disciplinary action shall be as defined in clause 3 of this Agreement. Provided that in the case of misconduct disciplinary action will be limited to (i) to (iv) of that clause. … 14.2 DISCIPLINARY ACTION FOR MISCONDUCT/SERIOUS MISCONDUCT (a) Before the Vice-Chancellor takes disciplinary action against an academic for reasons amounting to misconduct or serious misconduct, the Vice-Chancellor must take the steps in this clause, except that, where a matter which may involve misconduct or serious misconduct has been dealt with in good faith as if it were a case of unsatisfactory performance, the procedures of this clause are not required, but the provisions of the Unsatisfactory Performance clause, including notice periods and review procedures must be followed. (b) Any allegation of misconduct/serious misconduct shall be considered by the Vice-Chancellor. If he/she believes such allegations warrant further investigation the Vice-Chancellor shall: (i) notify the academic in writing and in sufficient detail to enable the academic to understand the precise nature of the allegations, and to properly consider and respond to them; (ii) require the academic to submit a written response within 10 working days. … (d) If the allegations are denied by the academic and the Vice-Chancellor is of the view that there has been no misconduct or serious misconduct he/she shall immediately advise the academic in writing, and may, by agreement with the academic, publish the advice in an appropriate manner. (e) If the allegations are admitted in full by the academic and the Vice-Chancellor is of the view that the conduct amounts to misconduct or serious misconduct the Vice-Chancellor shall advise the academic in writing of his/her decision and the operative date of the disciplinary action. (f) If the allegation is denied in part or in full or if the academic has not responded to the allegations the Vice-Chancellor shall refer the matter to a Misconduct Investigation Committee in accordance with the provisions of subclause 14.3.2 unless he/she decides to take no further action or counsel or censure the academic for unsatisfactory behaviour and take no other action. … 14.3.2 Misconduct Investigation Committee (a) Where a matter is referred to a Misconduct Investigation Committee under the Misconduct provisions of this Agreement the Vice-Chancellor shall convene the Committee within 10 working days where practicable. (b) The terms of reference of the Misconduct Investigation Committee are to report on the facts relating to the alleged misconduct or serious misconduct, and whether any mitigating circumstances are evident. (c) The Misconduct Investigation Committee shall provide a report to the Vice-Chancellor and the academic as soon as practicable following the conclusion of the Committee proceedings. (d) On receipt of the report of the Committee, and having considered its findings on the facts related to the alleged misconduct or serious misconduct, the Vice-Chancellor may take disciplinary action. (e) If, having considered the Committee's findings on the facts relating to the alleged misconduct or serious misconduct, the Vice-Chancellor is of the view that there has been no misconduct or serious misconduct he/she shall immediately advise the academic in writing, and may, by agreement with the academic, publish the advice in an appropriate manner. … (g) This clause in no way constrains the University from carrying out other or further investigations relating to the consequences of conduct of an academic or former academic when required in the public interest, eg inquiring into the truth of research results. (h) All actions of the Vice-Chancellor shall be final except that nothing in this subclause shall be construed as excluding the jurisdiction of any external court or tribunal which, but for this subclause, would be competent to deal with the matter.'

Relevant provisions of the Universities and Post Compulsory Academic Conditions Award 1995 were as follows: '5 DEFINITIONS … (c) "Disciplinary action" means action by the institution to discipline a member of academic staff for unsatisfactory performance, misconduct or serious misconduct and is limited to: (i) Formal censure or counselling; (ii) Demotion by one or more classification levels or increments; (iii) Withholding of an increment; (iv) Suspension with or without pay; (v) Termination of employment. (d) "Serious misconduct" shall mean: (i) Serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of an academic's duties or to an academic's colleagues carrying out their duties. (ii) Serious dereliction of the duties required of the academic office. (iii) Conviction by a court of an offence which constitutes a serious impediment of the kind referred to in paragraph (i). (e) "Misconduct" shall mean conduct which is not serious misconduct but which is nonetheless conduct which is unsatisfactory. … 9. TERMINATION OF EMPLOYMENT AND DISCIPLINARY ACTION … (d) An institution must not terminate the employment of an academic unless the academic has been given notice and/or compensation as required by section 170DB of the Act, provided that: (i) the institution may terminate without notice the employment of an academic found to have engaged in conduct of a kind envisaged in section 170DB(1)(b) of the Act such that it would be unreasonable to require the employer to continue employment during a period of notice; (ii) greater notice and/or compensation specified in the academic's contract of employment or in the terms of the 1991 Academic Award Restructuring Agreement or in this award shall prevail over the terms of section 170DB of the Act. … (h) In cases involving misconduct, disciplinary action shall be limited to the scope of 5(c)(i) to (iv). … 12. DISCIPLINARY ACTION FOR MISCONDUCT/SERIOUS MISCONDUCT … (b) Any allegation of misconduct/serious misconduct shall be considered by the CEO. If he/she believes such allegations warrant further investigation the CEO shall: (i) notify the academic in writing and in sufficient detail to enable the academic to understand the precise nature of the allegations, and to properly consider and respond to them; (ii) require the academic to submit a written response within 10 working days. … (d) If the allegations are denied by the academic and the CEO is of the view that there has been no misconduct or serious misconduct he/she shall immediately advise the staff member in writing, and may, by agreement with the academic, publish the advice in an appropriate manner. (e) If the allegations are admitted in full by the academic and the CEO is of the view that the conduct amounts to misconduct or serious misconduct the CEO shall advise the academic in writing of the CEO's decision and the operative date of the disciplinary action. (f) If the allegation is denied in part or in full or if the academic has not responded to the allegations the CEO shall refer the matter to a Misconduct Investigation Committee in accordance with the provisions of clause 13, unless he/she decides to take no further action or counsel or censure the academic for unsatisfactory behaviour and take no other action. …'