Orica Australia Pty Ltd v Coal Mining Industry

PERRAM J: 1 On 5 December 2023 I published my reasons for concluding that shotfirers employed by the Applicant ('Orica') were 'eligible employees' within the meaning of s 4(1) of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) ('Administration Act'): Orica Australia Pty Ltd v Coal Mining Industry (Long Service Leave Funding) Corporation [2023] FCA 1515 ('Substantive Reasons'). By the agreement of the parties, that question was heard separately from the remainder of the proceeding pursuant to r 30.01 of the Federal Court Rules 2011 (Cth). These reasons should be read alongside the Substantive Reasons and assume a familiarity with them. 2 The parties have since conferred and, subject to one exception, reached agreement on a form of declarations and orders which give effect to the Substantive Reasons and draw this matter to a close. It is common ground that Orica's originating application dated 3 March 2021 is to be dismissed, that Orica is to pay the Respondent's costs and that declarations are to be made which in substance reflect those sought by the Respondent in ss3-6 of its amended cross-claim dated 19 September 2023 ('cross-claim'). 3 Where the parties disagree is as to whether an order should be made which deals with the remainder of the cross-claim being ss1-2. The declarations sought in those prayers of the cross-claim are: (i) that Orica was an employer 'engaged in the black coal mining industry'; and (ii) that the shotfirers were 'eligible employees' within the meaning of sub-s (a) of the definition of that term in s 4(1) of the Administration Act. I declined to decide these issues at [94]-[97] of the Substantive Reasons on the basis that it was unnecessary to do so given I had already concluded that the shotfirers were eligible employees within the meaning of sub-s (b) of the definition of that term. 4 Orica argues that these declarations cannot be made based on the Substantive Reasons and that it is therefore appropriate that this part of the cross-claim be dismissed. The Respondent resists this course. It argues that the mootness of these issues does not necessitate dismissal and that no orders are necessary with respect to this part of the cross-claim. 5 The Respondent's position is understandable. It presumably does not wish to surrender its right to seek the same relief in future proceedings on account of res judicata, cause of action estoppel or another of the preclusionary doctrines. The question of whether a bare dismissal of the remainder of the Respondent's cross-claim would preclude it from seeking the same relief in fresh proceedings is not straightforward. 6 The Full Court in Zetta Jet Pte Ltd v The Ship Dragon Pearl (No 2) [2018] FCAFC 132; 265 FCR 290 ('Zetta Jet') held at [18]-[27] (per Allsop CJ, Moshinsky and Colvin JJ) that res judicata applies solely by reason of the character of the exercise of judicial power in pronouncing a final judgment and regardless of whether there has been an adjudication on the merits. It follows that in determining the extent of the res judicata that arises in a particular case, a court is to look only at the nature of the claim and the final orders: Zetta Jet at [35]. On the other hand, a differently constituted Full Court has cast doubt on whether res judicata or cause of action estoppel can even apply where declaratory relief is being sought: Mensink v Registrar of the Federal Court of Australia [2022] FCAFC 102; 294 FCR 101 at [52] (per Bromwich, Lee and Thawley JJ), citing Zavarco PLC v Nasir [2021] EWCA Civ 1217; [2022] Ch 105 at [37]-[41]. It should be noted that caution must be exercised in applying English authorities in this context, as the Full Court acknowledged in Zetta Jet at [26]-[27] and [36]. 7 It is not necessary for present purposes to resolve this question. It suffices to say that I accept that there is some risk that a bare dismissal of the remainder of the Respondent's cross-claim will preclude it from claiming such relief in future proceedings. However, it does not follow that no order should be made. In my view, it is not satisfactory to leave part of the cross-claim without a formal resolution as the Respondent urges and, in the absence of it being discontinued, I agree with Orica that it ought to be dismissed. 8 Balancing these considerations, I consider that the most appropriate course is to dismiss the remainder of the cross-claim without prejudice to any right of the Respondent to bring fresh proceedings in accordance with r 39.03 of the Federal Court Rules 2011 (Cth), exercising that power on the Court's own initiative pursuant to r 1.40(a). A dismissal on such terms is not a final adjudication on the Respondent's cross-claim and therefore does not engage the principles of res judicata or cause of action estoppel: Zetta Jet at [34]. I will make an order in these terms and otherwise make the orders and declarations agreed between the parties. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.