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[2003] NSWIRComm 82
procedural. The respondents’ notice of motion was dismissed. Costs were reserved, with liberty to apply in relation to costs ([36]).
The employers asked the Court to stop two employees’ unfair-contract cases, saying the cases were part of a union pressure campaign and should wait for a separate AIRC dispute. The Court accepted that a union official had made a threat about repeated court proceedings, but found no adequate evidence that the employees’ own cases were brought as part of the alleged plan. The pay comparison with Australia Post did not make the claims clearly untenable, and the AIRC case was different enough that it would not necessarily resolve the individual contract claims. The employers’ motion was dismissed, and costs were left for later consideration.
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Moir v Calokerinos & Anor and Castle v Calokerinos & Anor is an interlocutory judgment of Marks J in the Industrial Relations Commission of New South Wales in Court Session. It concerns two employees’ proceedings under s 106 of the Industrial Relations Act 1996 (NSW), and applications by their employers to dismiss or permanently stay those proceedings, or alternatively to pause them pending separate proceedings before the Australian Industrial Relations Commission (AIRC).
1 cited instrument linked from this judgment.
The applicants, Patricia Ann Moir and Susan Marie Castle, worked for John and Eleni Calokerinos, trading as Plumpton Post Office. Both had started working for the respondents in 1998. Castle was still employed when judgment was delivered; Moir resigned on 20 December 2002 ([2]–[3]). The summonses alleged remuneration of $13 per hour and an employment dispute arising from the respondents’ refusal to increase the applicants’ hours over the 2001 summer holiday period. Castle also alleged that she was told additional work would be offered only if she became a casual employee, which she said would avoid holiday pay loading ([4]).
The applicants sought declarations that their employment contracts or arrangements were unfair, harsh and unconscionable and contrary to the public interest, together with orders to void or vary those arrangements. One proposed variation would require remuneration no lower than the remuneration payable to an Australia Post employee doing the same work ([5]–[6]). The judgment records that the applicants’ case included a comparison between the work and pay at the licensed post office and employment at an Australia Post post office. It also records that the respondents disputed the asserted relevance of Federal industrial instruments and referred to the Shop Employees (State) Award ([11]–[17]).
The CEPU became involved after the applicants sought union assistance. On 4 January 2002, a union official, Mr Metcher, met the respondents. The evidence about what was said differed. Marks J accepted the respondents’ evidence that the official threatened that the respondents would be taken to “court after court after court” ([8]–[10]). A follow-up letter addressed pay, hours, employment documentation and records, and said the union considered that employees should receive legal entitlements. Mr Metcher accepted in cross-examination that there was no Federal award applying to the applicants’ employment circumstances and no legal entitlement to the rates being requested on that basis ([11]–[16]).
The CEPU later served a log of claims and brought proceedings before the AIRC. In September 2002, the AIRC recorded an industrial dispute involving the CEPU and a large number of employers, including Plumpton Licensed Post Office ([18]–[19]). Against that background, the respondents argued that the s 106 cases were part of an improper pressure campaign, that the applicants’ claims depended on instruments that did not apply to the respondents, and that the individual proceedings should await the AIRC outcome ([22], [27], [31]).
The Court rejected each ground for interlocutory relief. It dismissed the notice of motion and reserved costs, allowing liberty to apply concerning costs ([36]). It did not determine the ultimate merits of the applicants’ s 106 claims.
The abuse-of-process argument required the Court to focus on the purpose for which the applicants’ proceedings were brought. Marks J drew on the principles set out in Rix v Nationwide News Pty Ltd and Williams v Spautz, including the proposition that proceedings may be abusive where they are used for a purpose beyond the relief for which they exist. The Court emphasised that the respondents had the onus of establishing an improper purpose ([21]–[23]).
The accepted evidence of the union official’s threat was relevant, but it did not establish the alleged purpose of the applicants’ proceedings. The respondents needed to show, on the balance of probabilities, that the proceedings had been instituted as part of a concerted plan, or for the purpose of such a plan, to force them to agree to the CEPU’s pay demands in circumstances where there was no arguable legal entitlement to the requested rates ([23]). The Court found an evidentiary gap: there was no evidence of communications between the official and either applicant, or between the official and their solicitor, from which the alleged union direction or plan could be inferred ([24]). The fact that the solicitor also acted for the CEPU did not fill that gap ([24]).
The AIRC proceedings did not bridge the gap either. They involved hundreds of employers and arose from a generic log of claims. The Court considered that their existence did not support an inference that the applicants’ separate cases were part of a coordinated attempt to force these respondents to submit ([18]–[19], [25]). The abuse-of-process ground therefore failed ([26]).
The respondents’ second argument was that the applicants were trying to enforce Federal industrial instruments that did not apply. The Court distinguished between enforcing an instrument as such and relying on pay under another employment arrangement as a comparator in a s 106 unfairness claim. The summonses alleged unfairness partly because the applicants were paid less than they would have been paid by Australia Post for the same work. The Court did not accept that this meant the applicants were simply seeking to enforce the terms of a Federal instrument against the respondents ([27]–[28]). Nor did it decide the underlying merits. It held only that the applicants should not be prevented at this stage from maintaining and fully litigating their claims ([28]).
The applicable threshold for summary dismissal also mattered. Relying on Nagle v Tilburg and General Steel Inc v Commissioner for Railways (NSW), Marks J stated that termination for want of a cause of action should be used sparingly and only where the absence of a cause of action is clearly demonstrated ([29]). The respondents had not shown that the applicants’ cases could not possibly succeed, were manifestly groundless, or were so faulty that they did not admit of argument ([29]–[30]).
Finally, the Court considered whether to stay the cases until the AIRC proceedings ended. Moore v Inglis was cited for the possibility that substantially overlapping proceedings may be vexatious or oppressive in some circumstances ([31]). But the proceedings here were not sufficiently coextensive. The s 106 cases were between the individual employees and their employers and concerned the alleged unfairness of their employment arrangements. The AIRC matter involved the union and many employers, and its outcome would not necessarily determine the individual contractual claims ([32]–[33]). The Court also identified uncertainty about whether an award would be made, its timing and effect, and the limits of the AIRC’s role described in the judgment ([32]). It therefore refused a stay ([34]).
The judgment did not purport to announce a new general test for abuse of process or summary dismissal. It applied principles already stated in the authorities cited in the reasons. For abuse of process, Marks J used the approach drawn from Rix and Williams: the purpose of bringing or maintaining proceedings matters, and an improper purpose must be established on the evidence ([21]–[23]). The judgment’s contribution is its application of that approach to a factual setting involving a union official’s threat, separate employee proceedings, and a broader industrial dispute involving many employers.
Before this decision, as reflected in the cited authorities, a court could stay proceedings even if a moving party had a prima facie case, where the proceedings were being used for an impermissible purpose. The judgment’s account of Williams also cautions against treating every ulterior objective as abusive: a litigant may seek a result that follows from success in the proceedings, and the existence of an additional purpose does not automatically establish abuse ([21]). Marks J applied that distinction by asking whether the employees’ cases were brought to obtain relief available in the s 106 proceedings or instead as part of a plan to force acceptance of the union’s demands ([23]–[26]).
For summary termination, the judgment adopted the “clearly demonstrated” threshold identified in Nagle and attributed to General Steel. It treated that threshold as a reason not to decide the substantive viability of the claims on the interlocutory material where their failure was not clearly established ([29]–[30]). The decision therefore illustrates a distinction between testing whether a claim is plainly unsustainable at an early stage and determining its merits after litigation.
For concurrent proceedings, the judgment used Moore v Inglis as an example of circumstances in which overlapping cases may justify a stay. It distinguished the present proceedings because they were not based on the same cause of action, did not involve the same parties, and did not seek the same relief as the AIRC matter ([31]–[34]). The judgment does not establish that parallel industrial and court proceedings can never overlap improperly. Rather, it explains why this particular relationship between proceedings did not justify a stay on the evidence and arguments before Marks J.
The supplied judgment contains no account of later appellate treatment or subsequent cases. Accordingly, this analysis describes the reasoning and disposition in the 2003 interlocutory judgment only; it does not state how later courts treated the decision.
At [23], Marks J said the respondents had to demonstrate that the proceedings were instituted as part of a concerted plan, or for the purpose of such a plan, to force agreement to the CEPU’s demands. In plain English, evidence that the union official made a threat was not enough on its own. The respondents also needed evidence connecting that threat or plan to the applicants’ own cases.
At [24], the Court identified the missing evidence: there was no evidence of communications between the union official and either applicant, or between the official and the applicants’ solicitor, from which the alleged arrangement could be inferred. The fact that the applicants’ solicitor also acted for the CEPU did not itself establish that the union had directed or instigated their proceedings.
At [28], Marks J said the applicants should not be prevented at that stage from maintaining their claims and having them fully litigated. In plain English, using Australia Post pay as a comparison did not make the s 106 cases obviously invalid at the threshold stage. The Court was not deciding that the comparison would ultimately succeed or that the applicants were entitled to a particular rate.
At [29], the Court repeated the requirement that a claim be clearly shown to lack a cause of action before it is summarily terminated. This is a procedural threshold, not a finding that the applicants had proved unfairness. The respondents’ motion was not the occasion for deciding disputed merits that were not shown to be incapable of argument.
At [33], the Court explained that the AIRC matter would not necessarily determine the s 106 cases, because the parties, relief and basis of the proceedings differed. In practical terms, an outcome in the broad union dispute might not answer whether either applicant’s individual employment arrangement was unfair under s 106.
The formal order at [36] was limited: the notice of motion was dismissed, costs were reserved, and the parties had liberty to apply concerning costs. It did not finally determine either employee’s substantive claim.
The decision is most directly relevant to interlocutory applications where a respondent alleges that an employee’s proceedings are being used to advance a third party’s pressure campaign. The judgment shows that the existence of a threatening statement by a union official may be relevant evidence, but the Court examined whether there was evidence linking the applicants’ own proceedings to the alleged plan ([8]–[10], [23]–[26]). The reasoning is not a categorical rule that union involvement is irrelevant; it is a fact-specific assessment of the evidence the respondents relied on.
It is also relevant where a claim refers to rates or conditions found in an instrument that does not directly bind the respondent. The Court asked whether the applicants were seeking to enforce the instrument itself or using the comparison as part of an argument that their contracts were unfair ([27]–[30]). The judgment does not resolve whether a given comparator is legally or factually persuasive. It indicates only that the presence of such a comparator did not make these claims clearly incapable of succeeding at the interlocutory stage.
The decision may also be relevant when parties ask a court to pause a claim because a related industrial proceeding is underway. The Court compared the parties, causes or bases, relief and likely practical effect of the proceedings. A broad dispute involving many employers did not necessarily answer the individual contract claims before it ([31]–[34]). If another proceeding directly determined the same issues between the same parties, the comparison might be different, but that hypothetical is not decided in this judgment.
Finally, the case concerns an early-stage application to stop proceedings, not a final hearing of the s 106 claims. Its procedural setting matters. The Court was deciding whether the claims should be terminated or stayed on the basis put forward by the respondents, not whether the employees’ allegations were ultimately true.
The judgment supplied here does not identify any later decision that applied, followed, distinguished, or otherwise treated Moir v Calokerinos. It would therefore be unsupported to describe a later line of authority or claim that the case has become a leading precedent.
The judgment itself identifies authorities it used in reaching its decision. It applied the abuse-of-process reasoning discussed in Rix v Nationwide News Pty Ltd and Williams v Spautz ([21]–[26]). It considered Westfield Holdings v Adams in relation to claims for compensation and the use of industrial instruments in quantification, but found that the applicants’ case was not confined to enforcing an instrument ([27]–[28]). It applied the summary dismissal approach drawn from Nagle v Tilburg and General Steel ([29]–[30]), and considered Moore v Inglis on stays for overlapping proceedings ([31]–[34]).
Those are the authorities’ relationships to the reasoning in this judgment, not evidence of how subsequent courts treated Moir itself. A current account of later treatment would require sources beyond the supplied judgment, which are not available in the material for this analysis.
The interlocutory judgment left the substantive s 106 claims unresolved. It did not decide whether either employment arrangement was unfair, harsh or unconscionable, whether the Australia Post comparison was persuasive, or what relief might follow if a claim succeeded. The Court expressly allowed the applicants to maintain and litigate their claims; it did not grant their requested substantive relief ([28], [36]).
The judgment also did not determine whether a Federal or State industrial instrument applied to the respondents’ employees. It recorded the parties’ competing positions and the union official’s concession concerning the absence of a Federal award applicable to the applicants’ employment circumstances, but it did not make a final ruling on the legal status of all instruments potentially relevant to the employment relationship ([11]–[17], [28]).
The abuse-of-process issue was resolved on the evidence available for the motion. The Court found no evidence of the communications said to link the union, applicants and solicitor in a concerted plan ([24]–[26]). It did not set out how different evidence, if available, would affect the result. Nor did it determine the broader question of what level of union assistance, coordination or shared representation would be sufficient to establish an improper purpose in another case.
The relationship between the proceedings also remained contingent. Marks J noted uncertainties about whether the AIRC would make an award, when it might do so, and what effect it could have, including that any award might not cover the whole period of employment ([32]). The judgment’s conclusion is therefore tied to the proceedings and available information at that time, rather than a general ruling about every case involving parallel proceedings before an industrial commission.
The final order on costs was also incomplete: costs were reserved, and liberty to apply was granted ([36]). The judgment does not record a later costs determination.
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Industrial Relations Commission of New South Wales in Court Session
CITATION : Moir v Calokerinos & Anor and Castle v Calokerinos & Anor [2003] NSWIRComm 82
APPLICANTS Patricia Ann Moir PARTIES : Susan Marie Castle
RESPONDENTS John Calokerinos and Eleni Calokerinos trading as Plumpton Post Office FILE NUMBER: IRC 1355 and 1360 of 2002 CORAM: Marks J CATCHWORDS : Unfair contract - Allegations that trade union had imposed undue pressure on respondents - Proceedings in the AIRC seeking the making of an award which would bind the respondents - Application seeking that s 106 proceedings be dismissed or permanently stayed for alleged abuse of process - Application dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Workplace Relations Act 1996 Rix v Nationwide News Pty Ltd (1998) NSWIRComm 496 Williams v Spautz (1991-1992) 174 CLR 509 CASES CITED : Westfield Holdings v Adams (2001)NSWIRComm 293 Nagle v Tilburg (1993) 51 IR 8 General Steel Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Moore v Inglis (1976) 9 ALR 509 HEARING DATES: 02/20/2003; 02/21/2003 DATE OF JUDGMENT: 04/15/2003
APPLICANTS Mr R Reitano of counsel SOLICITORS Slater & Gordon LEGAL REPRESENTATIVES: RESPONDENTS Mr G J Hatcher of counsel SOLICITORS Cropper Parkhill
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Tuesday 15 April 2003
Matter No IRC 1355 of 2002 PATRICIA ANN MOIR v JOHN CALOKERINOS and ELENI CALOKERINOS trading as PLUMPTON POST OFFICE
Matter No IRC 1360 of 2002 SUSAN MARIE CASTLE v JOHN CALOKERINOS and ELENI CALOKERINOS trading as PLUMPTON POST OFFICE
Applications under s 106 of the Industrial Relations Act 1996
1 These interlocutory applications concern two sets of proceedings instituted under s 106 of the Industrial Relations Act 1996 ("the Act"). The applicants are respectively Patricia Ann Moir (No IRC 1355 of 2002) and Susan Marie Castle (IRC 1360 of 2002). The respondents in each set of proceedings are John Calokerinos and Eleni Calokerinos trading as Plumpton Post Office. The factual circumstances relating to each of the proceedings are identical, save in connection with one aspect of the proceedings brought by Ms Moir, to which I shall refer later in these reasons for judgment. In each set of proceedings the respondents have brought a notice of motion seeking that they be dismissed or permanently stayed because they are an abuse of process or alternatively that they be stayed until the final determination of certain proceedings currently before the Australian Industrial Relations Commission.
2 The summons for relief under s 106 of the Act brought by each of the applicants is essentially in the same terms. Each summons alleges that the respondents are a partnership who trade as Plumpton Post Office. The applicants allege that they commenced working for the respondents in 1998. Before commencing work with the respondents the applicant Castle was employed at the Plumpton Post Office by Mr Bruce Conroy for approximately three and a half years and prior to that alleges that she "was employed by the original operator of Plumpton Post Office for approximately three months." Prior to that time the applicant Castle alleges that she was employed by Australia Post at the Mount Druitt Village Post Office. The applicant Moir alleges that she was employed at Mount Druitt Post Office by Australia Post prior to commencing employment with the respondents.
3 The applicant Castle is still employed by the respondents. The applicant Moir resigned her employment with the respondents on 20 December 2002.
4 The summonses for relief filed by each of the applicants alleged that they were paid a remuneration of $13 per hour gross. The essential controversy which appears to have given rise to the proceedings, as disclosed in each of the summonses was the refusal of the respondents to increase the hours of work of each of the applicants over the summer holiday period in 2001. In her summons the applicant Castle alleges that the respondents said that they would only give her additional work over this period if she was prepared to become a casual employee "so that the respondents could avoid paying holiday pay loading".
5 Evidence given during the course of the interlocutory proceedings is to the effect that each of the applicants sought the assistance of a trade union, the Communications, Electrical, Electronic, Energy, Information, Postal Plumbing and Allied Services Union of Australia ("CEPU"). Following the intervention of an official of that union and inconclusive negotiations between the parties the applicants issued summonses seeking relief under s 106 of the Act on 11 March 2002. Each of the summonses seeks orders declaring that the contract or arrangement pursuant to which the applicants performed work for the respondents was unfair, harsh and unconscionable and contrary to the public interest and seeking consequential orders either voiding or varying the contract or arrangement. An alternative order sought to vary the contract or arrangement by the provision of a term requiring the respondents to pay the applicant remuneration not less than that which would be paid to the applicant if she were working in a post office in the employment of Australia Post.
6 Each summons alleged that if the applicant were employed by Australia Post her terms and conditions of employment would be governed by the terms of a Federal industrial instrument, that the Plumpton Post Office "looked like any other retail post outlet other than the fact that some other small retail items are sold which comprise no more than five percent of the respondents' business" and alleged that each applicant was being paid at a rate less than the total remuneration which would be payable to an Australia Post employee performing exactly the same work. This situation it was said created relevant unfairness for the purposes of s 106.
7 Evidence tendered for the purpose of the interlocutory proceedings indicated that the respondents purchased the licensed post office at Plumpton by agreement dated 13 November 1998. They executed a Licensed Post Office Agreement with Australia Post on 16 November 1998 which permitted them to carry out certain activities as a licensed post office.
8 After the applicants sought the assistance of the CEPU the respondents were approached by Mr James Craig Metcher the Branch Secretary of the Postal Telecommunications Branch of what I understand to be the New South Wales Division of the union to meet with him. That meeting took place at the respondents' home on the evening of 4 January 2002. There was conflicting evidence as to what was said precisely during the course of that meeting and how long the meeting lasted. I am satisfied on the basis of the evidence given about the meeting by the respondents and Mr Metcher that there was a discussion concerning the appropriate rate of pay which should be afforded to each of the applicants by the respondents. Mr Metcher asserted that the business of the respondents was in essence that conducted by any post office and that employees of the respondents should be paid at the same rate of pay and on the same basis as applies to Australia Post employees. It is clear also from the evidence that the respondents were to be given an opportunity to consider their position and in particular consider their legal position. Mr Calokerinos asserted that Mr Metcher said that he should talk to each of the applicants after he received legal advice and then said: "If you don't accept my offer I will drag you to court after court after court and this will take about two years. We will win and it will be very costly to you. I will fix it with the ladies so that you do not have to pay any back-pay and it will commence as from this meeting and I will file the agreement with the courts …." Mrs Calokerinos in oral evidence asserted that Mr Metcher said during the course of a lengthy discussion that the union would take the respondents "to court after court after court."
9 In oral evidence Mr Metcher denied that he had used these words.
10 Having regard to the totality of the evidence of Mr Metcher and his recollection of details as to what was said during the meeting, I prefer to accept the evidence of the respondents about this matter, that is that an allegation was made by Mr Metcher during the course of the meeting that the rights of the applicants to increase remuneration would be pursued by dragging the respondents "to court after court after court."
11 After the meeting a letter dated 9 January 2002 was forwarded by Mr Metcher to the respondents. In that letter Mr Metcher referred to the meeting on 4 January "in relation to matters of concern raised by the Union on behalf of our members …." The matters which were said to be raised by the union were the contract of employment, permanent hours of duty, rates of pay and the availability of pay records. The letter then refers to the Plumpton Licensed Post Office as being considered a "stand alone" facility that provided services similar to those of an Australia Post corporate outlet. It was said that the duties and functions performed by employees were similar in nature to those of persons classified at a particular grade covered by two named awards, which it was common ground in the proceedings were awards of the Australian Industrial Relations Commission. The letter enclosed a number of documents including the awards, an enterprise agreement, duty statements and in particular a copy of a letter from Australia Post to the CPEU which was said to outline certain award entitlements for licensed post office employees.
12 The letter then referred to advice which had apparently been provided to the respondents that their employees were covered by the "Shop Distributors Union" and the relevant State award, stating that the advice was "inaccurate, misleading and will at all times necessary be challenged by the CEPU."
13 The letter went on to state that the matters raised required resolution to ensure that persons who were members of the union or eligible to become members "receive their legal entitlements." There then followed an outline of the "preferred position" of the CEPU in order to resolve the grievances referred to including the preparation of a formal contract of employment for each of the applicants, a request to submit details of actual hours of duty performed by each of them, a request that the hourly rate paid to each of them of $13 be adjusted in line with rates payable under the Federal award applying to Australia Post and a supplementary enterprise agreement which were said to range between $16.36 to $17.24 per hour. It was suggested that $16.36 per hour was the appropriate rate to be paid to both employees. Finally, the letter requested the supply of pay advice records.
14 Mr Metcher requested a response outlining the respondents' position on each of the matters to be received by 25 January 2002.
15 A copy of that letter was forwarded by Mr Metcher to union officials, a representative of Australia Post, the applicants, the Australian Retailers Association and Mr Phillip Pasfield of the law firm Slater and Gordon. Evidence given by Mr Metcher in the proceedings indicated that Mr Pasfield was the solicitor of the Federally registered CEPU as well as the branch of which he was secretary. I should observe that Mr Pasfield is also the solicitor for each of the applicants in these proceedings.
16 During the course of cross examination Mr Metcher was pressed about his reference in the letter to the "legal entitlements" of the applicants and as to whether there was, in fact, any obligation imposed upon the respondents at law to make the payments sought by the CEPU to the applicants. Mr Metcher sought to justify the legal entitlement on the basis that the CEPU had obtained a letter from Australia Post at the time that it determined to grant licences for the conduct of Australia Post businesses that it would ensure that employees working in the licensed businesses would be afforded the same rates of remuneration and conditions of employment as those enjoyed by Australia Post employees. When pressed, Mr Metcher conceded that this did not in fact create any legal obligation on the respondents and therefore any legal entitlement on the part of applicants. Mr Metcher conceded that there was no Federal award that applied to the applicants' employment circumstances and that, indeed, there was no legal entitlement. It was this aspect which formed one of the bases upon which the respondents sought to characterise these proceedings as an abuse of process.
17 The Australian Retailers' Association wrote to Mr Metcher by letter dated 14 January 2002 denying that the Plumpton Licensed Post Office was a party to the Federal industrial instrument and asserting that the appropriate rates of pay for employees were those established by the Shop Employees (State) Award an award of the Industrial Relations Commission of New South Wales.
18 There appear to have been no further discussions between the parties. The CEPU served a log of claims on the respondents by letter dated 27 March 2002 in which it demanded that they pay and observe certain rates of pay and conditions of employment with respect to "All employees, either currently employed or to be employed in the future, who are or would be eligible to be members of the Union." The log of claims is in familiar form and makes no reference to any particular business operation of an employer and no reference to any particular occupation or duties of an employee. It is generic in form. It seeks the payment of a salary of $1,500 per week to all employees other than those who have completed particular training where the amount sought is increased. It also seeks the payment of certain allowances including an industry allowance, a site disability allowance.… an "aircraft allowance" and, interestingly, a "switching allowance" payable to "an employee required to maintain, test or carry out switching on high voltage or automatic equipment." It may be assumed therefore that the log of claims is not industry or occupation specific.
19 Presumably, following the service of the log of claims proceedings were instituted by the CEPU before the Australian Industrial Relations Commission by way of a notification brought under s 99 of the Workplace Relations Act 1996. On 3 September 2002 Senior Deputy President the Honourable L Kaufman made a finding of dispute to the effect that "there is in existence an industrial dispute between the …. CEPU on the one part and the employers listed in annexure A on the other part". The dispute was said to relate to pay and conditions of employment set out in a letter of demand and log of claims served by the CEPU upon the employers named on or about 27 March 2002. The dispute was said to exist throughout Australia. Whilst I have not attempted to count the number of employers listed in the annexure to the finding of dispute document, it is obvious there are some hundreds of them. One of the employers listed is the Plumpton Licensed Post Office.
20 I need to refer also to the evidence of Mr Metcher that the rate of remuneration of employees of Australia Post who are employed in post offices is fixed through the combined operation of an award which sets minimum rates of pay and a certified industrial agreement which fixes additional rates of pay to supplement those set out by way of minima.
21 It is now necessary to consider the submissions made by the respondents. The first submission was that the proceedings instituted in this Court constituted an abuse of process of the Court. In the course of submissions Mr Hatcher SC who with Mr Moore of counsel appeared for the respondents in support of the notice of motion referred me to Rix v Nationwide News Pty Ltd (1998) NSWIRComm 496 in which I discussed principles established by decided cases and in particular by the High Court of Australia which would assist in determining whether proceedings constituted an abuse of process. Because there is a certain similarity in the basis for approach to this issue in Rix with that which applies in the context of these proceedings I shall not endeavour to re-write what I said in Rix. I said: "ABUSE OF PROCESS - RELEVANT PRINCIPLES As a superior court of record albeit of limited jurisdiction this Court has what has been described as an "inherent jurisdiction" to stay proceedings which are an abuse of process. If authority for such a basic proposition is necessary, I refer to the joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ in the High Court of Australia in Williams v Spautz (1991-1992) 174 CLR 509 at 518. This inherent power is derived in turn from the inherent power to control and supervise the proceedings of the court including an over-riding power "to take appropriate action to prevent injustice." See Deane and Gaudron JJ, albeit in dissent as to the overall result of the proceedings, in Hamilton v Oades (1988-1989) 166 CLR 486. At 502 their Honours said: 'The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice: see Cocker v Tempest (1841) 7 M & W 502 at pp 503-504 [151 ER 864, at p 865]). In the case of the Supreme Court of New South Wales that power is confirmed by s23 of the Supreme Court Act 1970 (NSW) which states that the 'Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales'; see Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264; Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at p 617. The power of a court to control and supervise its process to prevent injustice is not restricted to defined and closed categories; Jackson v Sterling Industries Ltd ibid p 639; Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 at pp 340, 344. In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms 'oppressive' and 'vexatious' are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are 'seriously and unfairly burdensome, prejudicial or damaging' and 'productive of serious and unjustifiable trouble and harassment': Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at pp 247-250 per Deane J.' It is necessary in my opinion to have regard to the underlying rationale for the principles developed by the courts to assist in applying them to particular factual circumstances. The nature of the principles and the circumstances in which they will be applied were discussed fully by the High Court of Australia in Williams v Spautz previously referred to. I need only refer predominantly to the joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ. I should add for completeness that Brennan J (as his Honour then was) delivered separate reasons for judgment agreeing in the result reached by the majority. Deane and Gaudron JJ dissented. A number of principles may be extracted from the majority judgment which will be of assistance in determining the resolution of these proceedings. I intend to refer only to such of them as I consider relevant for the purpose of these proceedings. The joint majority judgment relevantly observed that the power to stay or otherwise deal with proceedings which constitute an abuse of process may be exercised "even if the moving party has a prima facie case or must be assumed to have a prima facie case." (at 522). Their Honours also observed that the power to deal with abuse of process by way of summary judgment is correlative to the tort of collateral abuse of process. In tracing the history of that tort and its ingredients and the manner in which it had been applied in the High Court, their Honours said the Court regarded the purpose of the party instituting the proceedings as of crucial importance. Their Honours cited comments of Isaacs J in the High Court of Australia in Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 where his Honour said: 'In the sense requisite to sustain an action, the term 'abuse of process' connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse of process for this purpose.' (at 91). In dealing with the purpose of the proceedings, their Honours cited with approval and as a correct statement of principle observations made by Lord Evershed in In re Marjory (1995) Ch 600 at 623-4 where his Lordship referred to a general rule: 'That court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused.' Their Honours also stated that the improper purpose referred to must be the predominant, but need not be the sole purpose of the proceedings or the threat of proceedings. The majority judgment in Williams v Spautz described "the boundaries of abuse of process". Their Honours rejected the proposition that "a purpose of a litigant in bringing proceedings which is not within the scope of proceedings constitutes, without more, an abuse of process" on the basis that this "might unduly expand the concepts." In their Honours' opinion: "The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event." (at 526). Their Honours gave by way of an example circumstances where there may be an ultimate purpose to the institution of proceedings not within the scope of the proceedings under challenge. However the existence of such an ultimate purpose would not constitute an abuse of process where there existed an immediate purpose associated with the proceedings namely to bring about a result "for which the law provides in the event that the proceedings terminate in the prosecutor's favour." ( at 526). The majority judgment gave two examples where proceedings could be characterised as an abuse of process. One is where the purpose of the proceedings was not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they were not designed or some collateral advantage beyond what could lawfully be obtained. Brennan J (as he then was) delivered a separate judgment in which his Honour reached the same conclusion as that of the majority judgment. In the course of his judgment Brennan J also sought to describe the circumstances in which proceedings would constitute an abuse of process. The purpose of the commencement or maintenance of legal proceedings was to be ascertained, according to his Honour: "by reference to the intention of the party who commences or maintains it (hereafter 'the plaintiff"). The intention of the plaintiff can be proved by what the plaintiff said and did, and from any inference that might be drawn from what was said or done (including the commencing and maintaining of the proceeding) in circumstances of the case. The testimony of the plaintiff, though admissible to prove intention, is not conclusive." (at 532). In discussing the manner in which the abuse of process principle had evolved his Honour distinguished between the purpose for the institution or maintenance of proceedings and the motive in commencing or maintaining them. If the intention is to secure a result achievable by commencing or maintaining the proceedings the motive will generally be irrelevant. His Honour then observed: "There is not impropriety of purpose (whatever may be said of motive) when a plaintiff commences or maintains a proceedings desiring to obtain a result within the scope of the remedy, even though the plaintiff has an ulterior purpose - or motive - which will be fulfilled in consequence of obtaining the legal remedy which the proceeding is intended to produce. To amount to an abuse of process, the commencement or maintenance of the proceeding must be for a purpose which does not include - at least to any substantial extent - the obtaining of relief within the scope of the remedy." (at 535)."
22 The first basis upon which it was asserted that the proceedings constituted an abuse of process focussed on the circumstances in which they were commenced. Emphasis was placed on the threat by Mr Metcher which, in effect, was said to expose the respondents to a series of litigation designed to force them into some form of submission. It was asserted that the proceedings in this Court were instigated by the CEPU on behalf of the applicants, and that tangible assistance was given by that organisation to them and to the prosecution of the proceedings. Emphasis was placed on the fact that Mr Pasfield, solicitor for the applicants was also the solicitor for the CEPU. These circumstances were said to be exacerbated by the existence of proceedings in the AIRC designed to bring about a similar effect and the misrepresentation made by Mr Metcher to the effect that the respondents were legally obliged to pay higher rates of pay by reason of industrial instruments made or approved by the AIRC. Finally, it was said in this connection that the s 106 proceedings were confined in their approach to seeking ultimately orders requiring the respondents to make payments of remuneration at the relevant Federal level.
23 In determining this issue it is necessary to have regard to the in-principle approach which may be derived from decided authorities, and in particular in this regard Williams v Spautz. This focuses attention on the purpose of the bringing of these proceedings in this Court. It is clear that the onus of establishing some improper or otherwise impermissible purpose lies on the respondents who are applicants in the notice of motion. In my opinion, in order to succeed in characterising these proceedings as constituting an abuse of process, the respondents need to demonstrate, albeit on the balance of probabilities, that they were instituted either as part of a concerted plan or for the purpose of such a plan designed to, or solely for the purpose of forcing the respondents to agree to the demands made by the CEPU on behalf of the applicants, in circumstances where the CEPU knew or ought reasonably to have known that there was no legal entitlement or any arguable entitlement at law to payment of remuneration at the higher rates.
24 There are a number of difficulties which stand in the way of such an argument. Firstly, there is no evidence at all concerning any communication of any kind between Mr Metcher or any other officer of the CEPU and the applicants, nor is there any evidence which would allow any inferences to be drawn concerning the existence or nature of any such communications. Likewise, there is no evidence of any communication between Mr Metcher and Mr Pasfield or between Mr Pasfield and either applicant which would again allow any conclusion or inference to be drawn about the part played by the CEPU in or in connection with the institution of these proceedings by the applicants. Although the applicants were inferentially members of the CEPU at all relevant times, prima facie the proceedings are commenced by them in their names and in their own right and cannot be characterised as having been instituted by, on behalf of or at the instigation of the CEPU. The coincidental retainer of Mr Pasfield by the applicants, Mr Pasfield being the solicitor for the CEPU does not allow any such conclusion or inference to be drawn.
25 The only other factor which might conceivably allow the respondents to succeed in any such argument is the existence of the proceedings before the AIRC. However, those proceedings are brought against many hundreds of employers, as I have previously noted. There can be no inference drawn that the AIRC proceedings were part of some plot by the CEPU to endeavour to force the respondents into submission by exposing them to a concerted campaign of legal proceedings.
26 For these reasons this aspect of the respondents' case must fail.
27 The second basis upon which the respondents submitted that the proceedings should be struck out or permanently stayed was that in essence the applicants were seeking relief by the application of provisions of Federal industrial instruments which did not apply to the respondents and that this was not an appropriate or permissible basis for the seeking of relief under s 106 of the Act. In support of this argument the respondents relied inter alia on observations of a Full Bench of this Court made in Westfield Holdings v Adams (2001) NSWIRComm 293. At paras 149 et seq the Court discussed the approach to quantification of claims for compensation brought pursuant to s 106 proceedings and standards of quantification available pursuant to industrial instruments
28 The difficulty I have with respect to this submission is that the unfairness which each of the applicants allege against the respondents to support their claims under s 106 of the Act is not confined to any attempt to enforce per se provisions contained within any Federal industrial instrument. The claims allege unfairness against the respondents inter alia by reason of the fact that the remuneration paid to the applicants was less than that which they would have earned if they had been employed by Australia Post performing exactly the same work. In the same way, there is no question of the applicant's seeking to enforce a State award. They deny that the Shop Employees (State) Award applies to their employment by the respondents. I am unable to conclude, on the basis of any authority, that the applicants should be precluded at this stage from maintaining their claims and should be precluded from the opportunity of litigating them fully within the s 106 proceedings.
29 The test to be applied in determining whether proceedings should be struck out or permanently stayed on an interlocutory basis is well known. I need only refer to the principles set out in the decision of the Full Court of the Industrial Court of New South Wales in Nagle v Tilburg (1993) 51 IR 8. The Full Court adopted observations of Barwick CJ in the High Court of Australia in General Steel Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. The Court concluded: "The jurisdiction to terminate an action summarily for want of a cause of action in the plaintiff was to be sparingly employed and ought not to be used save where the lack of the cause of action was clearly demonstrated." (at 12). In my opinion the respondents have failed to demonstrate that the applicants' cases cannot possibly succeed, are manifestly groundless, are so manifestly faulty that they do not admit of argument or disclose a case which cannot succeed, as is referred to in the judgment of Barwick CJ.
31 The respondents also submitted that the proceedings should be stayed pending the determination of the proceedings before the AIRC. The respondents relied upon observations made in a number of authorities concerning the existence of concurrent proceedings and the fact that concurrent proceedings could, in certain circumstances, constitute an abuse of process. Again, the authorities in this area are well established. I refer, for example, to the observations of Mason J (as his Honour then was) in the High Court of Australia in Moore v Inglis (1976) 9 ALR 509. In those proceedings his Honour stayed proceedings brought in the High Court of Australia because they covered substantially the same subject matter, relied upon substantially the same cause of action and in effect sought sufficiently similar forms of relief to proceedings commenced by the same plaintiff in the Supreme Court of the Australian Capital Territory as to justify the High Court proceedings being characterised as vexatious and oppressive and constituting an abuse of the process of the Court.
32 However, the circumstances of these proceedings and the concurrent proceedings before the AIRC are significantly different. These proceedings are proceedings inter partes and whether or not a Federal industrial instrument or instruments may or may not apply, may not necessarily be determinative as to whether the underlying contract of employment is unfair. In any event, unless an award is made by the AIRC with retrospective operation, any award made may not cover the totality of the period of employment of either applicant. Indeed, as has previously been observed in the case of the applicant Moir her employment came to an end on 20 December 2002. Furthermore, as Mr Reitano of counsel who appeared for the applicants to resist the notice of motion argued, there is no certainty that an award will ever be made by the AIRC, depending upon the course of the proceedings, and there is no certainty as to the quantification or form of any award entitlement which might be created. In any event, the AIRC is limited by reason of the provisions of the Workplace Relations Act 1996 in the way in which it may exercise jurisdiction and as to its jurisdiction. For example by s 89A(3), the AIRC may only make a minimum rates award. Any actual rates of pay would require to be fixed by a certified agreement. This would require the respondents to any award made, including the respondents to these proceedings, to enter into an agreement with the CEPU and for that agreement to be dealt with by the AIRC pursuant to the relevant provisions of the Workplace Relations Act. Furthermore, as Mr Reitano submitted it is possible that these proceedings before this Court may be concluded before any AIRC award is made.
33 In my opinion there is a substantial difference in the nature, effect and impact between an award made by the AIRC and these proceedings brought under s 106 of the Act. The finalisation of the former will not necessarily be determinative of these proceedings, the parties to the proceedings are different and the relief sought in these proceedings is not coextensive with nor does it have the same basis as what is sought in the AIRC proceedings.
34 In all these circumstances I am unable to accede to this argument.
35 Accordingly, the notice of motion brought by the respondents must fail. Costs would normally follow the event, but I shall allow the respondents an opportunity to address further argument about this issue.
36 I make the following orders: 1. The notice of motion is dismissed. 2. Costs are reserved. 3. Liberty to apply with respect to costs. ----------------
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(1993) 51 IR 8
(1964) 112 CLR 125
(1976) 9 ALR 509
(1987) 162 CLR 612
(1988) 165 CLR 197
(1911) 13 CLR 35
The respondents’ notice of motion was dismissed. Costs were reserved, with liberty to apply in relation to costs ([36]).