Scott v Steritech Pty Ltd

1. The applicant have leave to appeal from the orders in Proceeding No QUD236/2022 pronounced on 14 November 2023. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KENNETT J: 1 This is an application for leave to appeal from the judgment in Scott v Steritech Pty Ltd [2023] FCA 1401 (primary judgment or J). The applicant applied for compensation under s 545 of the Fair Work Act 2009 (Cth) (FW Act) or, alternatively, damages for negligence. The primary judge struck out the applicant's statement of claim under r 16.21(1)(f) of the Federal Court Rules 2011 (Cth) (Rules) and summarily dismissed the applicant's proceeding under r 26.01(1)(d) of the Rules. In short, her Honour's reasons were: (a) the claim under the FW Act was an abuse of process. The claim had been brought two years prior in the Federal Circuit Court of Australia and had been settled, which settlement included entry into a binding deed of release that barred future proceedings on the issues referred to therein; and (b) the Court had no jurisdiction to decide the applicant's claim for common law damages because the claim brought under the FW Act was "colourable" (in the sense described in Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 276 CLR 216 (Citta Hobart)) and was therefore not capable of supporting the accrued jurisdiction necessary to bring the common law claim in this Court. 2 Such decisions cannot be appealed without leave: s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). That section confers a discretion on the Court to decide whether to grant leave to appeal. The applicant submits that his proposed grounds of appeal raise issues worthy of consideration by a Full Court, and that he will suffer injustice if he cannot appeal because the primary judgment has the practical effect of determining his rights. His solicitor swore an affidavit annexing a draft notice of appeal containing the following proposed grounds: 1. The Court erred in finding that the Appellant's claim under the Fair Work Act 2009 was barred by a Deed of Release dated 21 May 2020, because no such finding could or should have been made on a summary basis without a hearing of the relevant evidence. 2. Further and alternatively, the Court erred in finding that the Court did not have jurisdiction to hear the Appellant's common law claim as pleaded in the statement of claim because: a. The Court misapplied the concept of a "colourable" claim or wrongly found that the Appellant's claim was "colourable". b. The Court wrongly found that the Appellant's common law claim was "invalid". c. The Court's jurisdiction was properly invoked and it had jurisdiction to hear and determine the Appellant's common law claim even if the Fair Work Act 2009 claim was struck out. 3 On 1 June 2024, the parties jointly contacted my Chambers to indicate that they had consented to this matter being resolved on the papers.

BAckground 4 The primary judgment contains a summary of the facts and the procedural history of this matter (J[5]-J[15]). What follows is a brief and high-level summary of those facts for the purposes of deciding this application. 5 The applicant was employed by the respondent between 1 April 2003 and 7 August 2018, when the respondent terminated his employment, purportedly because his position was redundant. On 8 July 2019 the applicant sued the respondent in what was then the Federal Circuit Court (the Circuit Court proceeding). 6 His claims were articulated in a statement of claim which was filed on 22 November 2019. He alleged that the decision to terminate his employment: (a) contravened various clauses of an applicable award and therefore contravened s 45 of the FW Act; (b) breached an implied term of his employment contract; and (c) contravened s 340 of the FW Act in that his employment was terminated because of his exercise of workplace rights; 7 The applicant sought compensation under s 545(2)(b) of the FW Act, or by way of damages in contract, in the sum of $414,544.00; pecuniary penalties under s 546 of the FW Act; and declarations. 8 The applicant and the respondent settled the proceeding by entering into a deed of release on 21 May 2020 (deed). The deed obliged the respondent to pay the applicant $52,500 and treat that payment as an "eligible redundancy payment". In exchange, the applicant provided the following release at cl 3(a): The Employee hereby releases and forever discharges the Company, its directors, officers, employees, servants, agents, related bodies corporate, predecessor companies and any of them from all actions, suits, claims, demands, rights, costs, complaints and other liabilities of any nature which the Employee now has or at any time may have, or but for the execution of this Deed, could or might have had against the Company, its directors, officers, servants, agents, related bodies corporate or any of them, whether known, unknown, or incapable of being known at the time of execution of this Deed, arising out of or in connection with the: (i) Employment Period; and (ii) Termination; and (iii) Proceedings; and any other matter whether or not referred to or concerning the same subject matter as that referred to in the Recitals to this Deed and whether arising at common law or in equity or under statute or otherwise as a result of any subsequent change in that law, including but not limited to any alleged breach of anti-discrimination legislation or anti-bullying legislation, save for any claims made under workers' compensation or superannuation law. 9 Clause 7(a) of the deed barred future proceedings by the applicant against the respondent in similar terms: Save by way of enforcement of this Deed, this Deed operates as an absolute bar to all actions, causes of actions [sic], proceedings, claims, accounts, demands, costs and expenses (including legal costs and expenses) threatened or brought or attempted to be brought by or in the name of the Employee against the Company, its directors, officers, servants, agents, related bodies corporate, or any of them arising out of or in connection with the: (i) Employment Period; and (ii) Termination; and (iii) Proceedings; and any other matter whether or not referred to or concerning the same subject matter as that referred to in the Recitals to this Deed and whether arising at common law or in equity or under statute, anti-discrimination law, anti-bullying law or otherwise or as a result of any subsequent change in that law, save for any claims made under workers' compensation or superannuation law. 10 On 19 June 2020 the respondent paid the applicant the sum agreed in the deed and the applicant discontinued the Circuit Court proceeding. 11 On 7 July 2022, the applicant commenced proceedings in this Court by filing an originating application and statement of claim. In these proceedings he sought compensation under s 545 of the FW Act in the sum of $1,191,193.19 or alternatively damages in the sum of $1,034,423.19. (a) The claim under s 545 (the FW Act claim) alleged breaches of ss 45 and 50 of the FW Act, arising from contraventions of an award and an applicable enterprise agreement. The provisions alleged to be contravened relate to consultation processes. (b) The claim for damages (the common law claim) was based in negligence. It alleged failures to notify and consult the applicant concerning the proposal to terminate his employment, which were in breach of a duty of care owed by the respondent and caused him psychiatric injury. 12 The respondent filed an interlocutory application to strike out the applicant's statement of claim and summarily dismiss the proceeding. The respondent argued that the FW Act claim was an abuse of process because it relitigated earlier claims that had been settled and because it was plainly barred by the deed. The respondent also argued that the common law claim could not be heard in this Court because this Court has no express jurisdiction to hear it and the FW Act claim could not support the accrued jurisdiction necessary to hear it because it was "unarguable", referring to Rana v Google Inc [2017] FCAFC 156 (Rana). 13 As to the operation of the deed, the primary judge concluded at [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. 14 Her Honour then noted the respondent's contention that the proceeding was an abuse of process and that this, rather than the lack of reasonable prospects of success, was the main focus of the argument. After referring to authorities on the concept of abuse of process, her Honour noted the overlap between the factual allegations in the proceedings and the provisions of the FW Act relied on. Her Honour concluded (at [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. 15 The primary judge then turned to consider the effect of the language of the deed excluding "claims made under workers' compensation … law" from the scope of the release. Her Honour held at [38] that his could "only" be a reference to a potential claim for damages "referable to" the relevant legislation in Queensland (the Workers' Compensation and Rehabilitation Act 2003 (Qld) (the WCR Act) (at [38]). She rejected a submission that this expression was ambiguous and therefore called for extrinsic evidence in order to construe it (at [40]), observing that 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". Her Honour observed that the WCR Act contained an express provision preventing entitlements under that Act from being relinquished, and this was the explanation for the reference in the deed to "workers' compensation law" (at [41]-[43]). 16 Two "serious issues" therefore arose (at [44]). (a) First, there was nothing in the material to indicate that the applicant met the requirements of s 237 of the WCR Act. Thus, "any claim by him for damages under the WCR Act is invalid" (at [45]-[46]). (b) Secondly, because this Court has no general jurisdiction to determine common law damages claims (or claims under State legislation), the proceeding was competent only on the basis that the matter included claims under the FW Act (at [47]). Her Honour referred to relevant passages in Citta Hobart, Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 (Burgundy) and Rana (at [48]-[51]) and then concluded (at [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 [sic], 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.

Principles governing the exercise of the discretion 17 The principles governing the discretion conferred by s 24(1A) of the Federal Court Act were recently summarised by the Full Court in Wilson v State of Victoria [2023] FCAFC 204 at [14]-[16]: Whether or not to grant leave to appeal requires the exercise of a discretion which, on its face, is unfettered but must be exercised judicially. The exercise of that discretion is usually informed, and in this case should be exercised, by reference to principles discussed by the Full Court in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397, at 398 - 400 (Sheppard, Burchett and Heerey JJ). Flowing from that case and those principles we ask ourselves two interrelated questions: (a) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong? In so doing, we bear in mind that the decision sought to be challenged is not an interlocutory value judgement on a matter of practice and procedure which calls for circumspection in granting leave, but rather one which, although deemed to be interlocutory, nonetheless has a quality of finality about it in a practical sense. Related to the latter, and as the primary judge appreciated, summary judgment under s 31A of the FCA Act could only be granted if the criteria in that provision, as explained in Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer), were met. In turn, that the primary judge was addressing whether summary judgment criteria were met provides a prism through which to assess whether any of the alleged errors are such as to warrant a grant of leave to appeal. When considering s 477A of the Migration Act 1958 (Cth) and the exercise of a discretion to extend the time within which to bring an application for a remedy in relation to a migration decision, the High Court considered that an assessment of the merits of the substantive application is usually, although not invariably, undertaken at an impressionistic level: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819, at [12] and [18] (Kiefel CJ, Gageler, Keane and Gleeson JJ). The same approach applies by analogy to an application for leave to appeal such as in the present case. (emphasis added) 18 The applicant also drew my attention to the comments of the Full Court in Hastwell v Kott Gunning [2021] FCAFC 70 (Hastwell) at [26]: We also accept the concession made by Kott Gunning that consideration of whether the decision was attended by sufficient doubt so as to justify the grant of leave to appeal must be assessed in the context that the order effectively brought the proceeding to an end: Tyne v UBS AG [2016] FCA 241 per Edelman J (at [31]-[34]). In this regard, the observations of French J (with whom Beaumont and Finkelstein JJ agreed) in Johnson Tiles Pty v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 (at [43]) are instructive: … Interlocutory orders cover a spectrum from those concerned solely with the mechanics of case management and pre-trial preparation to those which may, for one reason or another, have a significant impact upon the scope and outcome of the proceedings. If the order, the subject of the application for leave to appeal, is concerned with the mechanics of the pre-trial process then the scales are likely to be weighted against the grant of leave. However if while interlocutory in legal effect it has the practical operation of finally determining the rights of the parties "a prima facie case exists for granting leave to appeal" - Ex parte Bucknell (1936) 56 CLR 221 at 225; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400; Minogue v Williams [2000] FCA 125 at [18]. If a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory. However leave will usually be granted in such a case if there is any doubt about the decision at first instance - Little v Victoria [1998] 4 VR 596 at 598-600 and 601 (Callaway JA, Buchanan JA agreeing). (emphasis added) 19 These comments are relevant because the orders from which the applicant seeks leave to appeal brought his proceeding to an end. He submitted that the primary judgment "has the practical operation of finally determining the rights of the parties". The respondent did not submit otherwise. The question whether there is sufficient doubt as to the correctness of the primary judgment to justify a grant of leave must, as the Court observed in Hastwell, be addressed in that context.

Proposed ground 1 20 The release clause in the deed, which has been set out above, was expressed very broadly. Aside from the exemption relating to workers' compensation law, it is clear that, read literally, it captured the present case. However, broadly expressed language in a release clause is to be construed in the light of the recitals that precede it and the "circumstances to which the instrument must have intended to apply" (in particular the dispute which existed between the parties): Sarina v Fairfax Media Publications Pty Ltd [2018] FCAFC 190; 365 ALR 15 at [20] (Sarina). In addition, circumstances can arise in which reliance on wide and general words in a deed of release is liable to be restrained in equity. These principles were enunciated in Grant v John Grant and Sons Pty Ltd (1954) 91 CLR 112 at 123-125; see also, more recently, Sarina at [20]-[21] and Protheroe v Protheroe [2023] NSWCA 328 at [38] (Meagher JA). 21 The primary judge set out the relevant passage in Sarina (at [23]) but appears then to have relied on the full breadth of the release clause read according to its terms, without any canvassing of how (if at all) its meaning might be narrowed by matters arising from the context in which the deed was agreed (at [24]). This very likely reflects the fact that the applicant had led no evidence on the respondent's interlocutory application. The affidavit of Mr Robertson, filed by the respondent in support of its application, merely recorded that there had been a mediation at which an in-principle agreement had been reached, followed by correspondence between the parties' solicitors concerning the terms of the deed. 22 Evidence concerning the discussions that led to the formulation and execution of the deed had the potential to affect the construction of the release clause or to raise questions as to whether the respondent should be restrained from relying on its literal language. Whether that is a serious prospect is difficult to assess without knowing what the evidence might be. There is therefore substance in the applicant's submission that this was not an appropriate issue for determination on a strike-out and summary dismissal application. The respondent submits that it was open to the applicant to file any evidence on which he wanted to rely in response to that application. However, the timetabling orders made by the primary judge (on 5 August 2022 and 5 September 2022) made no provision for the filing of evidence on the interlocutory application. Even if they had done so, there is scope for argument that factual issues of central importance (involving potentially conflicting evidence of conversations) should not have been decided on an interlocutory application. 23 More specifically, the reference in the release clause to "claims made under workers' compensation … law" is facially ambiguous at least to the extent that (a) "law" is a broader term than "legislation", and (b) it is not clear whether the laws being referred to are limited to laws enacted specifically to deal with "workers' compensation". The common law of negligence in its application to workplace injuries, and the FW Act in so far as its compensation provisions are engaged by conduct that causes injury, are capable of coming within the expression, although such a reading of it may be strained. The primary judge's observation that claims under workers' compensation legislation were "routinely" excluded from settlement terms (in recognition of provisions which prevent contracting out of rights under such legislation) may well be correct, but its factual foundation is not explained. 24 It should also be noted that the primary judge appears to have excluded the possibility that the present proceeding was relevantly a claim "under" the WCR Act (and therefore not precluded by the deed) on the footing that there was "no material before the Court" to show that the applicant met the requirements of s 237 of that Act. That, arguably, was a factual issue for the trial rather than a basis for striking out a pleading and ordering summary dismissal. The applicant had not yet been put to proof of his compliance with s 237 of the WCR Act, if that was to be the basis on which he sought to avoid the effect of the release clause. 25 The respondent submits, in effect, that none of the points canvassed above matter because the primary judge's finding of an abuse of process is not challenged by the proposed grounds of appeal. I do not accept this submission. The conclusion of the primary judge at [36] (quoted at [14] above) appears to rest largely if not wholly on the effect of the deed. If that reading is correct, there is no separate finding as to an abuse of process that the applicant must challenge in order to succeed on an appeal against the orders that were made. Any argument that the proceeding involves an abuse of process for other reasons (eg the overlap of claims and factual substrata) would need to be the subject of a notice of contention. 26 If the understanding of the primary judge's reasons set out in the previous paragraph is not correct, it may be that the applicant's proposed grounds of appeal require further work. However, that is not sufficient in itself as an objection to a grant of leave. Although it is necessary for an applicant for leave to provide a draft notice of appeal, a grant of leave need not be limited to particular grounds of appeal. 27 I note in this connection that the argument apparently accepted by the primary judge was not that the case fell into any of the categories of estoppel identified in Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 (which her Honour cited at [27]) but that it was a case where the use of the court's process was unjustifiably oppressive or would bring the administration of justice into disrepute. These are characterisations which depend in part on the surrounding circumstances, and therefore take one back to the lack of evidence as to those circumstances and the desirability of dealing with the question on a strike-out application. Accepting (as was noted in Tomlinson at [26]) that advancing a claim that was determined (or should reasonably have been determined) in an earlier proceeding can - indeed probably will - constitute an abuse of process, there is scope for argument as to whether the overlap between the issues in the Circuit Court proceeding and those sought to be raised here is such as to render the current proceedings abusive.

Proposed ground 2 28 The primary judge's conclusion at [52], which has been set out above, appears to describe the aspect of the matter in which the Court "would not otherwise have jurisdiction" as "colourable". Read literally, this misses the point that was being discussed in the cases referred to, which was whether a claim that is within federal jurisdiction (and used as a vehicle to bring the remainder of the matter within federal jurisdiction) is "colourable". For present purposes I proceed on the basis that this was a drafting slip which would not give rise to a successful appeal point. 29 What is more significant about this paragraph of the reasons is that her Honour's conclusion appears to be based solely on the anterior conclusion that the applicant's claims (or some of them) amounted to re-litigation of the earlier proceeding and were barred by the deed. The conclusion that the jurisdiction of the Court had not been properly invoked therefore seems to fall away if the applicant is successful in the arguments he seeks to advance under proposed ground 1. 30 If the applicant does not succeed on proposed ground 1 (ie, if his claims for relief under the FW Act were properly struck out), a question remains as to whether his claim for damages for negligence was properly dismissed for want of jurisdiction. 31 The extract from Burgundy (a decision of a Full Court of this Court) that the primary judge set out at [51] makes it clear that the dismissal of claims that attract federal jurisdiction (eg claims asserting rights that arise under a law of the Commonwealth) does not result in the Court losing jurisdiction to deal with other claims (eg common law claims). The Court in Burgundy at 219 observed that the position might be different if the federal claims were "'colourable' in the sense that they were made for the improper purpose of 'fabricating' jurisdiction". However, there was no room for such a suggestion in that case: the relevant claim "cannot be said to be unarguable; and we think it was pursued bona fide". 32 The primary judge evidently considered the applicant's claims under the FW Act to be "unarguable" (because of the effect of the deed) but did not expressly canvass any question as to whether it was pursued bona fide. There is thus arguable error in the conclusion at [52] that the claims were "'colourable' as explained by the Full Court in Burgundy". 33 As noted earlier, the primary judge also referred to Rana and Citta Hobart in this connection. (a) In Rana (referred to at J[48]-J[49]) the Full Court also made the general point that the dismissal (including by striking out) of a federal claim does not cause the Court to lose jurisdiction over what is left of the matter (Rana at [21]). The Court stated an exception to that general point, citing Burgundy, as follows. 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. (Emphasis added; citations omitted.) (b) In Citta Hobart, what the majority (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) said at [34]-[36] was: There remains to consider whether, in order to have given rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution, the constitutional defence asserted by the appellants needed to meet some threshold degree of arguability and, if so, what that threshold was. The question is said in informed contemporary commentary to be not yet finally resolved. The resolution in principle is that for a claim or defence in reliance on a Commonwealth law or in reliance on the Constitution to give rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution, it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument. That is what should be taken to have been meant by repeated acknowledgements that the 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 if the claim or defence is "unarguable" or if the claim or defence is "colourable" in that it is made for the purpose of "fabricating" jurisdiction. Thus … the federal jurisdiction of [a court] under s 77(i) … of the Constitution is not engaged by the assertion of a claim or defence that amounts to "constitutional nonsense" or any other form of legal nonsense. But examination of what the prospects of success of a legally coherent claim or defence might be, were that claim or defence to be judicially determined on its merits, forms no part of the requisite assessment. (Emphasis added; footnotes omitted.) 34 When this passage is considered in full, it becomes apparent that there is scope for argument as to whether the primary judge was correct to cite Citta Hobart for a proposition 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'" (at [50]). Assuming that the applicant's claims under the FW Act could be said to be "unarguable" in that they could not succeed in the light of the deed, it may not necessarily follow that those claims were not "genuinely in controversy" or did not "give rise to an issue capable of judicial determination".

Resolution 35 There is an arguable case that the exercise of discretion by the primary judge miscarried, in that: (a) the deed, properly understood, did not prevent the applicant advancing his claims under the FW Act or at common law; (b) alternatively, both the proper construction of the deed and the question whether the respondent should be allowed to rely on its terms depended on evidence and were not appropriate for resolution on an interlocutory application; and (c) the primary judge was therefore not in a position to conclude that the proceeding involved an abuse of process. 36 If these arguments succeed, it will follow that no part of the applicant's claims was outside the jurisdiction of this Court. Even if those arguments do not succeed, there is an arguable case that the applicant's claims under the FW Act were not "colourable" and the Court's jurisdiction was properly invoked. 37 These arguments have sufficient cogency to justify a grant of leave to appeal. 38 There will be no order as to costs: s 570 of the FW Act. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett.