Consideration
19 It is not in dispute that Mr Scott originally commenced litigation against Steritech in the Federal Circuit Court claiming failure of Steritech to comply with a consultation clause under the Clerks - Private Sector Award 2010 (Award), that Mr Scott had originally claimed that Steritech had breached s 45 of the Fair Work Act and had engaged in adverse action against him within the meaning of s 342(1) of the Fair Work Act, and that the parties had settled the proceedings in the Federal Circuit Court for $52,500.00. Comparison of Mr Scott's application in the Federal Circuit Court with his statement of claim in this Court reveals that the facts pleaded in both cases are, essentially, identical, being referable to the circumstances of the termination of Mr Scott's employment by way of redundancy. Material differences are:
Although Mr Scott's claims in both the Federal Circuit Court proceeding and the present Federal Court proceeding relied on the consultation process in clause 8 of the Award, in the Federal Court Statement of Claim he also relies in the alternative on the Steritech Pty (Narangba) Plant Operators Collective Agreement 2007;
In the Federal Court proceeding Mr Scott claims breach by Steritech of its Fair Work Act obligations to him, as well as breach by Steritech of its duty of care to him referable to compliance by Steritech with obligations under the Award, consultation about the proposed redundancy and providing him with support. In the Federal Circuit Court Mr Scott did not plead breach of a duty of care by Steritech - rather while he claimed contravention by Steritech of s 45 of the Fair Work Act, he also claimed alleged breach of an implied term of Mr Scott's contract by failure to give him six months' notice and contravention of Part 3-1 of the Fair Work Act by Steritech (which was not the subject of his claim in the Federal Court).
20 By cl 3(a) of the Deed of Release Mr Scott released and forever discharged Steritech and others from, inter alia, all actions, suits, claims, demands, rights, costs, complaints and other liabilities of any nature he had, or at or at any time may have, or but for the execution of the Deed, could or might have had against Steritech and others, whether known, unknown or incapable of being known at the time of execution of the Deed, arising out of or in connection with the employment period, termination and proceedings and any other matter. However, there was a specific exclusion for:
any claims made under workers' compensation or superannuation law.
21 Clause 7(a) of the Deed of Release mirrored cl 3(a) by providing that the Deed of Release operated as "an absolute bar" to further proceedings, again save for any claims made under workers' compensation or superannuation law.
22 The release and bar in the Deed of Release are plainly expressed in very broad and comprehensive language, and (save for the defined exception) unambiguously prohibit claims arising out of or in connection with Mr Scott's employment period, termination of employment, proceedings and any other matter, whether known or unknown or incapable of being known at that time. In Laverick v Westpac Banking Corporation [2020] QSC 333 Bowskill J (as her Honour then was) observed in relation to a consent order agreed by the parties:
20. The wording of order 19, reflecting as it does the agreement of the parties to the consent orders, is to be construed in the same manner as a written agreement: that is, construed objectively, having regard to what a reasonable person in the position of the parties to it would have understood it to mean, having regard to the language used, the surrounding circumstances known to the parties at the time of the agreement and its purpose.
23 In Sarina v Fairfax Media Publications Pty Ltd [2018] FCAFC 190; (2018) 365 ALR 15 the Full Court considered a deed of release executed by relevant parties, where the respondent relied on the deed as a complete defence to a claim for defamation brought by the applicant. The primary Judge in that case had found that relevant clauses had a very wide operation, and, as the respondent was entitled to the benefit of that release, the clauses extended to release the respondent from any liability in respect of particular published articles. Relevantly the Full Court said:
20. Where, in a deed (or agreement) a clause provided one party with a release in wide or general words, the common law principle of construction restricted the otherwise wide or general operation of those words by construing the release clause as operating upon only the subject or occasion to which the deed (or agreement) read as a whole referred: Grant 91 CLR at 123-124 per Dixon CJ, Fullagar, Kitto and Taylor JJ. Thus, where, as often occurs, a deed recited that the parties have had a particular dispute, but the clause creating the release did not expressly confine its operation to the dispute mentioned in the recitals, the principles of construction at common law read down the wide words of the release to apply only to the dispute in the recitals. Indeed, Dixon CJ, Fullagar, Kitto and Taylor JJ explained (Grant 91 CLR at 124 and 131) that the common law principle was that a written instrument expressed in general terms (be it a deed or statute) had to be construed having regard to the circumstances to which the instrument must have intended to apply. This in substance accords with the modern principles applicable to the construction of contracts and deeds. As Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40] (and see also Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45 at 52-53 [10] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ):
This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) [2004] HCA 35; 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 461-462 [22]. (emphasis added)
21. However, where one of the parties to a release sought to rely upon its wide and general words, equity considered whether it would be unconscientious for that party to enforce such a meaning by examining each party's actual knowledge and intention at the time of entry into the release: Grant 91 CLR at 124-125. In other words, as Dixon CJ, Fullagar, Kitto and Taylor JJ held (at 129-130), equity will restrain a party seeking to enforce a wide or general release where it would be unconscientious for that party to do so in all of the circumstances. In such a case, the court will examine the knowledge and intention of both releasor and releasee as to the subject matter on which the release would operate.
24 Given the breadth of the release and discharge of Steritech by Mr Scott in the Deed of Release, and the unambiguity of the language used in that Deed, I am satisfied, to the extent that Mr Scott now seeks to prosecute a claim in the Federal Court of Australia referable to any rights he may have had under the Fair Work Act arising out of or in connection with his employment period, or the termination of his employment, such claim is barred by the Deed of Release. That Mr Scott now seeks to prosecute different Fair Work rights to those he litigated in the Federal Circuit Court is irrelevant - the Deed of Release applies.
25 Steritech contends that Mr Scott's application is an abuse of process. The Court may order that a proceeding be dismissed as an abuse of process pursuant to r 26.01(1)(d) of the Federal Court Rules, or alternatively because the applicant has no reasonable prospect of successfully prosecuting it (s 31A of the Federal Court Act and r 26.01(1)(a) of the Federal Court Rules).The arguments put to me in this respect primarily concerned the question whether the present Federal Court action was an abuse of process within the meaning of r 26.01(1)(d).
26 The onus of establishing that a claim brought in later proceedings constitutes abuse of process of the Court is on the party alleging abuse, and is a heavy one: UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [67], [136].
27 Having said that, as a general proposition re-litigation of finalised proceedings constitutes an abuse of the Court's process. In Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 French CJ, Bell, Gageler and Keane JJ observed at [25] to [26]:
25. Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
26. Accordingly, it has been recognised that making a claim or raising an issue which has been made or raised and determined in an earlier proceeding or which ought reasonably to have been made or raised for determination in that earlier proceeding can constitute an abuse of process, even when the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.
(emphasis added)
28 Similarly in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [33] and [34] French CJ relevantly observed:
33. … 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.
34. … 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…
29 Subsequently Dowsett J in Tyne (Trustee) v UBS AG (No 2) (2015) 250 FCR 341; [2017] FCAFC 5 observed:
1. In particular, I note the following propositions:
• abuse of process may arise in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party, or would bring the administration of justice into disrepute;
• a court has inherent power to prevent misuse of its procedures in a way which, although not inconsistent with the literal application of its procedural rules, would nonetheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute amongst right-thinking people; and
• making a claim or raising an issue which was made, or raised and determined in earlier proceedings, or which ought reasonably to have been so raised for determination in those earlier proceedings, may constitute an abuse of process, even where the party seeking to make the claim or to raise the issue in the later proceedings was neither a party to the earlier proceedings, nor the privy of a party.
30 In Tyne the claim sought to be prosecuted by the first appellant (as trustee of a trust) in the Federal Court was substantially the same as that raised by the trust against the same respondent in the New South Wales Supreme Court, to which proceeding the first appellant had also been a party. The Federal Court found that the relief sought by the appellant arose out of the same factual matrix as did the Supreme Court claim. The Supreme Court proceedings were however unconditionally discontinued prior to final resolution.
31 In respect of previously discontinued proceedings, Justice Dowsett observed in Tyne:
DISCONTINUANCE OF PROCEEDINGS
13. An applicant in legal proceedings should not expect that he or she may, as a general rule, discontinue, and then recommence proceedings, without any significant risk that such conduct will be characterized as an abuse of process. Whilst a person, who has previously discontinued a claim, may not be barred from seeking to pursue that claim in subsequent proceedings, it does not follow that such conduct is desirable, at least where there is no reasonable explanation for it. In considering whether conduct amounts to an abuse of process, the focus must be on the identification of manifest unfairness to the respondent, and/or upon any likelihood that the administration of justice will be brought into disrepute amongst right-thinking people. Where either of these effects is demonstrated, the conduct may be an abuse of process, even if a reasonable explanation is proffered. In principle, an explanation should only assist if it leads to the conclusion that neither likely effect has been proven.
32 His Honour later continued:
BRINGING THE ADMINISTRATION OF JUSTICE INTO DISREPUTE
15. In considering whether conduct is likely to bring the administration of justice into disrepute, the Court will bring to the task its own experience as to the effect upon the right-thinking person of particular conduct in the course of legal proceedings. Without wishing to be prescriptive or exhaustive, I suggest that the right-thinking person would know that:
• litigation is expensive, for the parties and for the public purse;
• to engage in litigation is a serious business, causing stress and inconvenience, as well as cost;
• there are delays in the legal system, and time spent on one case cannot be spent on other cases; and
• a democratic society depends heavily upon the existence of a fair, efficient, effective and economical process for resolving disputes.
16. Such a person would expect that:
• a party would only resort to the courts if he or she genuinely believed that he or she had a good case and intended to prosecute it to resolution, by judgment or agreement;
• a party who has elected to go to court concerning a matter, would seek to resolve the whole dispute, not merely an aspect of it; and
• where two or more persons claim to have suffered loss as the result of the same conduct, and those claimants are closely associated, personally or in business, they would generally seek to resolve their claims in the same proceedings, rather than in separate proceedings.
17. The right-thinking person would be aware that some or all of these considerations might not apply in a particular case, given the circumstances of that case. However, in general, where previous proceedings have been discontinued, and similar proceedings subsequently commenced, the right-thinking person would infer that there had been a loss of time, an increase in costs, some degree of repetition of process and undue vexation to the other party. Such a person would likely perceive that if the administration of justice allows such conduct, without any explanation, it is inefficient, careless about the incurrence of cost by the parties, and profligate in the application of public moneys.
33 Justice Dowsett was in dissent in the Full Court in Tyne, however on appeal to the High Court his Honour's conclusion was upheld. In UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 Kiefel CJ, Bell and Keane JJ observed:
38. The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute. These wider interests are reflected in s 37M(2) of the FCA. As the joint reasons in Aon Risk Services Australia Ltd v Australian National University explain, the "just resolution" of a dispute is to be understood in light of the purposes and objectives of provisions such as s 37M of the FCA. Integral to a "just resolution" is the minimisation of delay and expense. These considerations inform the rejection in Aon of the claimed "right" of a party to amend its pleading at a late stage in the litigation in order to raise an arguable claim. The point is made that a party has a right to bring proceedings but that choices are made respecting what claims are made and how they are framed. Their Honours speak of the just resolution of the dispute in terms of the parties having a sufficient opportunity to identify the issues that they seek to agitat. The respondent's argument in Aon, that the proposed amendment to raise the fresh claim was a necessary amendment to avoid multiple actions, did not avail. As their Honours observe, if reasonable diligence would have led to the bringing of the claim in the existing proceedings, any further proceeding might be met by a stay on Anshun grounds.
34 Their Honours later continued:
59. For the Federal Court to lend its procedures to the staged conduct of what is factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation, as Dowsett J found, is likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys. The primary judge was right to permanently stay the proceedings as an abuse of the processes of the Federal Court.
35 Comparison of the proceedings brought by Mr Scott in the Federal Circuit Court and the Federal Court of Australia reveal that both proceedings involved the same factual allegations, brought by the same applicant against the same respondent. Further there is plainly overlap between the two proceedings referable to the provisions of the Fair Work Act on which Mr Scott relied, in particular the relief sought by Mr Scott in both cases pursuant to ss 45 (relating to the contravention of the relevant award) and 545 of the Fair Work Act (although in the Federal Circuit proceedings the compensation sought under s 545 was $414,544.00, whereas in the Federal Court proceedings the compensation sought under s 545 was $1,191,193.19).
36 Given the agreement of Mr Scott and Steritech to the broad terms of the Deed of Release I am satisfied that Mr Scott is endeavouring to re-litigate his earlier, settled claim originally brought in the Federal Circuit Court under the Fair Work Act, and that it is an abuse of the process of the Federal Court for Mr Scott to bring in this Court proceedings which are barred by that Deed.
37 However, there remains the issue of a "claim made under workers' compensation…law" by Mr Scott. The parties are at odds as to the meaning of that phrase for the purposes of the Deed of Release and the present interlocutory proceeding.
38 I have had regard to the submissions of the parties both oral and written in this respect. The starting point for this analysis is that Mr Scott was employed by Steritech in Queensland. A "claim made under workers' compensation… law" made by him because of an injury suffered by him in the course of his employment with Steritech in Queensland can only be a reference to a potential claim for damages, referable to the Workers' Compensation and Rehabilitation Act 2003 (Qld) (WCR Act). As the long title of the Act states, the WCR Act is to establish a workers' compensation scheme for Queensland, and for other purposes. The WCR Act creates a scheme regulating claims by an injured employee for either damages or compensation even if, as Counsel for Mr Scott submitted, the WCR Act does not itself create such an entitlement.
39 There is no suggestion that Commonwealth workers' compensation legislation (in particular the Safety, Rehabilitation and Compensation Act 1988 (Cth)) is relevant to the circumstances of this case.
40 I do not accept the submission of Mr Scott that a "claim made under workers' compensation… law" is ambiguous such that it requires extrinsic evidence to construe. As is clear from such decisions as Zoiti-Licastro v Australian Taxation Office [2006] 154 IR 1 (a decision of the Australian Industrial Relations Commission over which Giudice J presided), settlement terms for employment claims routinely exclude the possibility of future claims for damages or compensation for personal injuries to be made under workers' compensation legislation. In Zoiti- Licastro for example claims under the Safety, Rehabilitation and Compensation Act 1988 (Cth) were excluded from a settlement.
41 I further note that the WCR Act specifically provides in s 110(2) that an agreement made by the worker or the person purporting to relinquish an entitlement to compensation for an injury sustained by the worker or the person is of no force or effect. This inability to contract out of the provisions of the WCR Act provides an explanation why a right to bring such a claim is preserved in settlements of employee claims, and was preserved by the Deed of Release in this case, notwithstanding that in the present proceeding Mr Scott seeks damages rather than compensation. Indeed, no other explanation is apparent for the saving of claims by Mr Scott "under workers' compensation… law" in the Deed of Release, in the context of an otherwise broad ranging and comprehensive release of Steritech by Mr Scott.
42 Mr Scott accepted that an application for compensation would be made to, decided by, and paid by the insurer (in this case, WorkCover Queensland) rather than Steritech, and submitted that it made little sense to read the Deed of Release as meaning that the Mr Scott was releasing Steritech from all claims except one made under the WCR Act when Mr Scott could never have had such a claim against Steritech. In my view, while the insurer is - as Mr Scott conceded - a proper respondent to a claim under the WCR Act, I see nothing remarkable about a Deed of Release, as a matter of drafting practice and prudence, saving broad statutory possibilities for any future claims for damages referable to the WCR Act which would name the employer as a party. No submissions were made by either party about the manner in which a claim under the WCR Act would be framed by an injured employee, however I note for example s 275 of the WCR Act provides that before starting a proceeding in a court for damages, a claimant must give notice of the claim to the insurer and the employer, and to that extent the employer would have a role in the litigation.
43 Again, as was explained in Zoiti-Licastro, terms saving claims under workers' compensation law are routine in settlement agreements.
44 It follows that to the extent that Mr Scott's claim for damages under "a workers' compensation…law" is on foot, there are two serious issues arising.
45 First, as Steritech submitted, s 237 of the WCR Act provides:
(1) The following are the only persons entitled to seek damages for an injury sustained by a worker -
(a) the worker, if the worker -
(i) has received a notice of assessment from the insurer for the injury; or
(ii) has not received a notice of assessment for the injury, but -
(A) has received a notice of assessment for any injury resulting from the same event (the "assessed injury"); and
(B) for the assessed injury, the worker has a DPI of 20% or more or, under section 239, has elected to seek damages; or
(iii) has a terminal condition;
…
(5) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.
(emphasis added)
46 There is no material before the Court evincing that Mr Scott is a person who satisfies the requirements of s 237(1) of the WCR Act. To that extent any claim by him for damages under the WCR Act is invalid, as is clear from both ss 237(1) and 237(5).
47 Second, s 19(1) of the Federal Court of Australia Act 1976 (Cth) provides that the Federal Court has such original jurisdiction as is vested in it by laws made by the Parliament. There is no jurisdiction vested in the Federal Court to determine claims for damages for common law negligence, including claims for damages referable to employment otherwise regulated by State law such as the WCR Act. Mr Scott relied on the decision of the Full Court in Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156, and submitted that even if the Fair Work Act claim were to be dismissed, the Federal Court's jurisdiction to determine the matter already existed such that its jurisdiction to determine the common law claim aspect would remain.
48 In Rana the Full Court relevantly observed:
21. Generally, non-colourable assertion of a federal issue is enough to attract federal jurisdiction: Felton 124 CLR at 374 per Barwick CJ; Moorgate 145 CLR at 476; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation [1987] FCA 686; 18 FCR 212 at 219; Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369 at 389-391 per Dixon J. Upon the existence of federal jurisdiction, the matter remains within federal jurisdiction regardless of how the federal issue or issues within it are ultimately resolved: Moorgate 145 CLR at 476. It remains federal even if the federal claim is struck out: Unilan Holdings Pty Ltd v Kerin [1993] FCA 605; 44 FCR 481 at 481-482. Nor does dismissal of the federal claim mean that a court exercising federal jurisdiction somehow loses jurisdiction over the balance of the matter: Burgundy Royale 18 FCR at 219; Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; 104 FCR 564 at 597 [85] per French J. … The position is summarised in Macteldir Pty Ltd v Dimovski [2005] FCA 1528; 226 ALR 773 at 784 [36] as follows:
It is a fundamental tenet of federal jurisdiction that once a federal claim is made, even a bad one, and even one that is abandoned, or struck out, the whole matter in which that claim is made is, and remains, federal jurisdiction ...
49 Their Honours continued however:
22. The exception to this principle is where the federal claim that is made is "colourable" in the sense that it was "made for the improper purpose of fabricating jurisdiction" such that it was not made bona fide. In such a case, federal jurisdiction is not attracted: Burgundy Royale 18 FCR at 219.
50 I further note the comment of the High Court in Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 at [36] that assertion of a claim or defence will not give rise to a matter within the description in s 76(i) or s 76(ii) of the Constitution (Cth) if the claim or defence is "unarguable".
51 In Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 the Full Court said at 219:
It is true that in answering questions 1 and 2 in the negative, we have determined preliminary points of law in the claims under the Act brought against the second and third respondents; and that, in consequence, there will be no further trial of those issues. But it does not follow that the Court ever lacked jurisdiction to deal with such claims. Nor does it follow that the Court now loses its jurisdiction to deal with the attached common law claims: see Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 469, 472, 477; Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (1987) ATPR 40-795; 75 ALR 271, and Dorotea Pty Ltd v Vancleve Pty Ltd (1987) ATPR 40-807; 75 ALR 629. In principle, the position is no different than it would have been if the claims under the Act had proceeded to trial and had been dismissed on the merits. In that situation, it could not seriously be suggested that the dismissal of the claims under the Act had the effect of depriving the Court of jurisdiction to deal with any attached non-federal claim.
The position may have been different if the claims under the Act had been "colourable" in the sense that they were made for the improper purpose of "fabricating" jurisdiction: see P H Lane, Lane's Commentary on the Australian Constitution (1986), pp 367-368 and the cases there cited. There is no room for such a suggestion here. The applicants' case that the second and third respondents were bound by the Act cannot be said to be unarguable; and we think it was pursued bona fide: cf R v Cook; Ex parte Twigg (1980) 147 CLR 15 per Gibbs J at 26.
(emphasis added)
52 In this proceeding I am satisfied that Mr Scott's claims under the Fair Work Act were plainly a re-litigation of earlier settled proceeding, and were barred by the Deed of Release. As Steritech has pointed out in submissions, no explanation for that re-litigation in the Federal Court has been given by Mr Scott. I consider that his claim for damages under "workers' compensation… law", in respect of which the Federal Court would not otherwise have jurisdiction, were "colourable" as explained by the Full Court in Burgundy, such that this Court does not have jurisdiction to hear it.