Department of Education and Training v Hart [2011] QIRC 5

CITATION: Department of Education and Training AND Nicolaas Hart (B/2010/31) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 331 - decisions generally Department of Education and Training AND Nicolaas Hart (B/2010/31) DEPUTY PRESIDENT BLOOMFIELD 3 February 2011 DECISION Background to the application [1] On 13 August 2010 Mr Nicolaas Hart filed an application under s. 278 of the Industrial Relations Act 1999 (the Act) (Matter No. B/2010/25) in which he sought to recover an amount of $28,143.12*, or other amount owed, from the Queensland Department of Education, Training and the Arts (the Department) and/or the Bremer Institute of TAFE (TBIT). The amount was said to represent unpaid overtime, casual hours and non-attendance hours payments payable to him for services rendered to TBIT as calculated according to the TAFE Teachers' Award - State 2003 (the Award) and the TAFE Educational Staff Sub-Agency 2003 - Certified Agreement (the Agreement). Appended to the application was a schedule which set out the amounts allegedly owed, comprised as follows: Unpaid Salary: $22,270.01 Non-attendance time: $ 5,667.52 $28,011.78* (sic) (the addition should read $27,937.53) * The amount claimed is different to that recorded in the schedule [2] On 28 September 2010 the Department filed the present application (Matter No. B/2010/31) in which it sought an order pursuant to s. 331(b) of the Act that the Queensland Industrial Relations Commission (the Commission) dismiss or refrain from hearing Matter No. B/2010/25 because further proceedings in the Commission were not necessary or desirable in the public interest. [3] Included in the Department's application was a chronology of relevant events leading up to its application under s. 331(b), as follows: "4(a) On or about 16 May 2008, Mr Hart filed an application for unpaid wages in the commission (B/2008/38). It was an application for 'an order for payment of unpaid wages and overtime and loss of income'. (b) On or about 4 June 2008 during the course of the conciliation conference in that matter, B/2008/38 was amended, by consent, to include an additional claim by the respondent Mr Hart for non-attendance time on a pro rata basis pursuant to Schedule 2, paragraph 2 of the TAFE TEACHERS AWARD - STATE (the award). (c) B/2008/38 was heard by the commission on 25 and 26 August 2008. (d) The commission released its decision on 15 September 2008, a copy of which is annexed hereto and marked with the letter A. (e) On 10 May 2010, some 581 days out of time, Mr Hart filed an application to appeal (C/2010/22) in the Industrial Court of Queensland (the court). (f) On 20 May 2010 Mr Hart filed an application for an extension of time within which to appeal (C/2010/25) in the court. (g) On Friday 13 August 2010 Mr Hart filed requests to discontinue C/2010/22 and C/2010/25 in the court. (h) Mr Harts application for an extension of time was set for hearing in the court of the following Monday 16 August 2010. (i) At the hearing on Monday 16 August 2010 the applicant State of Queensland applied for its costs of and incidental to C/2010/22 and C/2010/25. That application is set for hearing in the court on 19 October 2010. At the same time, the respondent Mr Hart was given leave to otherwise discontinue C/2010/22 and C/2010/25. -- 1 of 8 -- 2 (j) On 13 August 2010 Mr Hart filed a further application for unpaid wages in the commission (B/2010/25) with respect to which this application is brought. It is an application for, 'an order for payment of the remaining unpaid overtime, casual hours and non-attendance hours payments payable to me for services rendered to TBIT': see paragraph 1 of B/2010/25.". [4] In seeking an order that the Commission dismiss or refrain from hearing Matter No. B/2010/25 the Department argued that further proceedings are not necessary or desirable in the public interest because: (a) Matter No. B/2010/25 constitutes an abuse of process; and (b) further, or in the alternative, the Applicant is estopped from proceeding (estoppel by judgement or res judicata). [5] In particular, it was the Department's case that: (a) the application for unpaid wages and non-attendance hours made by Mr Hart has already been heard in the form of Matter No. B/2008/38 and it is an abuse of process to attempt to run that application again as Matter No. B/2010/25; and (b) because Matter No. B/2008/38 was heard and decided, with the meaning of those terms as they are employed in s. 265 of the Act, on 15 September 2008, Mr Hart is estopped from bringing the present application (Matter No. B/2010/25). Mr Hart's first application (Matter No. B/2008/38) [6] In his first application, filed on 16 May 2008, Mr Hart sought to recover the sum of $34,386.02 said to be owed in respect of unpaid wages, overtime and loss of income. Later, on 10 June 2008, Mr Hart lodged an amended application in which he sought the amount of $39,743.71. This amount was said to comprise: Unpaid wages: $19,386.02 Punitive damages for maladministration: $15,000.00 Non-attendance time pursuant to Schedule 2.2(a) and (b) of the Award: $ 5,357.69 $39,743.71 [7] Mr Hart's application was heard by Commissioner Thompson on 25 and 26 August 2008. However, after he had given evidence and was in the process of cross-examining the Department's final witness, on the second day of hearing, Mr Hart suddenly informed the Commission (Transcript 2-37, line 42 onwards) that he wished to abandon his claim with the exception of the amounts said to be owing in respect of non-attendance time under Schedule 2.2(a) and (b) of the Award (Transcript 2-43, line 54 onwards). [8] In the course of his Decision in relation to Mr Hart's application, Commissioner Thompson recorded (Nicolaas Hart v Department of Education, Training and the Arts1): "The applicant, who was self-represented, opened his submissions by expressing a naivety in respect of his keeping of records regarding his employment. He conceded that he had not properly recorded all overtime worked outside the location of the places where he had undertaken his teaching delivery work. He then submitted he could now only claim the monies owing to him according to Schedule 2.2(a) and (b) of the Award being: … The amount claimed was identified as $4,870.63, amended from the amount shown in the application. When questioned by the Commission as to whether he was amending his claim, the applicant stated (at page 44, line 5 of transcript on Day 2 of proceedings): "Yes, I have no claim. I made a mistake, I wear whatever I did.". Further on, at page 48, line 50 of transcript (Day 2 of proceedings), the following exchange occurred: "Commissioner: Mr Hart, do you - you indicate, do I take, and I want to be crystal clear on this, from your submission do I take it that with the exception of that amount, you withdraw all other aspects of the claim? 1 Nicolaas Hart v Department of Education, Training and the Arts (2008) 189 QGIG 608 -- 2 of 8 -- 3 Applicant: That's correct, Commissioner. Commissioner: Okay. And you reject it on the basis of the reasoning given in the course of your submissions? Applicant: The reason I reject all other claims, is because I recognise that there isn't the foundation of documents that I should have made sure would have been available. Commissioner: Can I ask you when you came to that determination? Applicant: I cam to that conclusion during the course of the discussion and through your guidance that - and I ----- Commissioner: No, what point in time, I understand - I want you to be specific? Applicant: During the cross-examination of Ms Vaughan. Commissioner: Okay. Who was the last witness today.". … Conclusion The determination of the application by the Commission was significantly curtailed by the actions of the applicant in the course of final submissions when he withdrew all aspects of his claim with the exception of the claim for payment of non-attendance time as provided for in Schedule 2.2(a) and (b) of the Award. The Commission went to some lengths to ensure that the withdrawal of the sections of the claim relating to $19,386.02 (overtime) and $15,000.00 (punitive damages) were done with the applicant being fully aware of the consequences of his decision. The applicant informed the Commission that he was of the opinion that he had no claim in the areas withdrawn due to a lack of 'foundation documents that he should have made sure were available.'. The Commission, however, did need to address the remaining facet of the claim which went to the five weeks' non-attendance time which was claimed on a pro rata basis. … Finding In the absence of evidence surrounding the claim by the applicant for a pro rata payment in respect of the non-attendance time payment, the Commission is extremely reluctant to accept the claim on the face of simply the Award provision without knowing how such a provision would apply to the circumstances of the applicant's employment. For that reason, the application would fail due to lack of argument. There is no requirement for the Commission to address the aspects of the claim withdrawn by the applicant in the course of the proceedings. … The Commission, having considered the submissions of the parties, does not accept the respondent's argument that the substantive application was made without reasonable cause, therefore the request for an award of costs in accordance with s. 335 of the Act is rejected. The application and the request for costs are both dismissed. I so order.". (My emphasis.) Mr Hart's appeal to the Industrial Court [9] According to the Department's submissions, Mr Hart communicated with the President of the Industrial Court in mid-September 2009, presumably in relation to the earlier proceedings (I have not seen the letter and am unaware of its contents). The Industrial Registrar apparently replied to Mr Hart's correspondence by letter dated 17 September 2009 advising him that he had 21 days from the date of the Commissioner's Decision within which to appeal to the Industrial Court. Subsequently, on 10 May 2010, Mr Hart filed an appeal in the Industrial Court -- 3 of 8 -- 4 (Matter No. C/2010/22). Ten days later he filed an application for an extension of time within which to bring the appeal (Matter No. C/2010/25). [10] A directions hearing was held on 1 July 2010, with the appeal and the extension of time hearings both scheduled for Monday 16 August 2010. However, on Friday 13 August 2010 Mr Hart lodged a discontinuance of both C/2010/22 and C/2010/25. [11] On the same day he filed a second unpaid wages application (Matter No. B/2010/25) which the Department now asks the Commission to dismiss or refrain from hearing. Submissions by the Department in support of its application (a) Abuse of process [12] The Department submitted that any further proceedings in relation to Mr Hart's application are not necessary or desirable in the public interest and that any attempt to re-litigate the matters contained with the application would be an abuse of process. The Department argued that the abuse of process arose because Mr Hart was seeking to run the same case, a case which has already been decided, a second time. [13] The Department contended that "in substance and in truth" there is no difference between the claim made by Mr Hart in 2008 and the fresh claim, a point Mr Hart is said to concede in paragraph 3 of his written outline of submissions which state "the content of matter B/2008/38 was and matter B/2010/25 is that, in accordance with the Award and Agreement, the QIRC remedy these omissions in DETA's calculation of the applicant(s) salary." (my highlighting). The Department submitted that the 2008 hearing involved the leading of evidence, cross-examination of witnesses, closing submissions and even submissions in relation to the question of costs. In those circumstances, Matter No. B/2010/25 constituted a "blatant and improper attempt to re-litigate B/2008/38 - that is, it seeks to mirror and repeat the interlocutory steps, hearing and determination as previously described.". [14] In support of its contention that Mr Hart's second application (Matter No. B/2010/25) constituted an abuse of process, the Department cited the following decisions: CHR Group v AMEPKU2; Haines v Australian Broadcasting Corporation3; Sea Culture International Pty Ltd v John Allibon Scoles 4; Mango Boulevard Pty Ltd v Spencer and Ors5 ; and, Batistatos v Road and Traffic Authority of New South Wales6. [15] In particular, the Department referred to paragraph [40] of Mango Boulevard Pty Ltd v Spencer and Ors, op cit in which Muir JA wrote: "[40] In the following passage from the reasons of Giles CJ in State Bank of New South Wales Ltd v Stenhouse Ltd, quoted with approval by Chesterman J in Mango Boulevard Pty Ltd v Spencer & Ors and by Wilson J in Frikton v Plastiras, some of the matters relevant to a consideration of whether particular conduct constitutes abuse of process were usefully identified: 'The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are - (a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue; (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of - 2 CHR Group v Automotive, Metals, Engineering, Printing and Kindred Industries Union of Employees [2004] 177 QGIG 280 3 Haines v Australian Broadcasting Corporation [1995] NSWSC 136 4 Sea Culture International Pty Ltd v John Allibon Scoles; Gayleen Morea Meehan; Ocean Foods International Pty Ltd and Vapac Limited (In Receivership) [1991] FCA 523 5 Mango Boulevard Pty Ltd v Spencer and Ors [2010] QCA 207 6 Batistatos v Road and Traffic Authority of New South Wales [2006] HCA 27 -- 4 of 8 -- 5 (f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.' ". [16] The Department also referred me to the decision of Fraser JA in Mango Boulevard (supra) at [146] where his Honour stated: "[146] Mango Boulevard referred to the decision of the Western Australian Court of Appeal in Brocx v Hughes, in which Newnes JA expressed the relevant principles in the following passages: 'What constitutes an abuse of process cannot be reduced to hard and fast rules or closed categories because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case: Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, 74-75; Batistatos v Road and Traffic Authority of New South Wales [2006] HCA 27. … … It is evident, however, that in Australia, as in England, there has in more recent times been a change in the approach of the courts to the conduct of litigation and there is now a much greater focus on the effect that the way in which parties conduct litigation has on the court and other litigants. In that connection, the principles referred to in the older cases now fall to be considered in the light of the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. In that case, the court pointed out that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. Whilst parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute, where a party has had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants. Whilst those observations were, of course, made in respect of a late application to amend a pleading, in my view they are of general application. They were made in the context of rules of court which find their counterpart in this court in O 1 r 4B. That rule provides, in effect, that the rules and the processes and procedures of the court are to be applied so as best to attain the just determination of litigation, the efficient use of the resources of the court, and the timely disposal of the business of the court at a cost affordable by parties.' ". [17] In light of the above authorities, the Department submitted that Mr Hart had sufficient opportunity to conduct his case in 2008 and the present application was, put plainly, a "bare-faced attempt" by Mr Hart to re-run a case he lost the first time around. Further, the Department submitted "allowing B/2010/25 to proceed would do grave justice to the Department and to other litigants who come before the Commission. It would also be a decision which would necessarily erode the principle of finality of judicial determination and public confidence in the administration of justice.". (b) Res judicata [18] The Department argued that Mr Hart's initial application (Matter No. B/2008/38) had been heard and decided as per the Decision of Commissioner Thompson released on 15 September 2008. As such, Mr Hart was precluded from pursuing the same matters again because of the doctrine of estoppel by judgement (or res judicata) which was founded upon concepts such as "there should be finality in litigation and … A party should not be vexed twice in the same matter, respectively … and the need for decisions of the court, unless set aside or quashed, to be accepted as incontrovertibly correct." (Johnson v Gore Wood & Co) 7. [19] It was submitted that to found an estoppel the following matters must be established, all of which were argued to have been satisfied in this matter: (a) the first decision must have been judicial; (b) the decision must have been pronounced; (c) the tribunal must have had jurisdiction over the parties and the subject matter; 7 Johnson v Gore Wood & Co [2002] 2 AC 1 -- 5 of 8 -- 6 (d) the decision must have been final and on the merits; (e) it must have determined the same question as that raised in the later litigation; and (f) it must be between the same parties (there are other aspects to this element which are not relevant in this case because the parties are the same). [20] The Department acknowledged there will be no estoppel if there is a voluntary withdrawal and if no decision is made or if a decision is ambiguous as to whether the rights and liabilities of the parties have been determined in a final way. In this case, it was submitted, a Decision was made and released on 15 September 2008. However, the Department argued, there was, and is, no ambiguity whatsoever about the fact that the Decision dealt with and resolved all of the claims made in Matter No. B/2008/38. [21] The Department specifically rejected any notion that aspects of Mr Hart's conduct of his original case should have any bearing on the question of whether the Decision of Commissioner Thompson was final and/or unambiguous. [22] In Matter No. B/2008/38 the Commission essentially had two claims before it: (a) a claim for overtime in the amount of $19,386.02; and (b) a claim for non-attendance time payment in the amount of $5,357.69 (this amount was amended during the hearing to be $4,870.63). In Matter No. B/2010/25 the claim involves: (a) a claim for overtime in an amount of $22,270.01; and (b) a claim for a non-attendance time payment in the amount of $5,667.52. [23] The Department submitted that the 2010 claim is the same overtime and non-attendance time claim which was the subject of Matter No. B/2008/38. Further, in the course of those proceedings Mr Hart "unequivocally and unconditionally" abandoned the major component of the claim, being the claim for overtime. [24] The Department further submitted that while Mr Hart might have used words like "reject" and "withdraw" his overtime claim, the substance of his position was simply that he did not wish to make submissions in support of the overtime claim because he accepted that he had no case to pursue on the basis he had not advanced the proper evidentiary foundation to support it. [25] Insofar as the approach adopted by Commissioner Thompson, the Department argued that what he decided could be understood by what he did not do, namely: permit Mr Hart to discontinue the application as required by Rule 65 of the Industrial Relations (Tribunal) Rules 2000. No application to discontinue was made and no reference to discontinuance appears in the transcript. As such, the Department argued, Matter No. B/2008/38 proceeded to its inevitable conclusion. [26] That involved the Commissioner noting that the determination of the application was significantly curtailed by the actions of Mr Hart, in the course of his final submissions, in withdrawing all aspects of his claim with the exception of a claim for payment of non-attendance time. The Commissioner also noted that Mr Hart failed to provide any evidence in support of this aspect of the claim and, on that basis, stated that it would fail "due to a lack of argument". [27] The Department submitted that there was no doubt that both claims were heard and decided, albeit that the decision in respect of the non-attendance time payment might, perhaps, have been somewhat clearer than the overtime claim. (c) The Anshun principle [28] The Department submitted that if it was believed that Matter No. B/2008/38 and Matter No. B/2010/25 were not identical or substantially the same claims then Mr Hart ought to be estopped from proceeding pursuant to the Anshun principle, developed in Port of Melbourne Authority v Anshun Pty Ltd8. In that case, the High Court refused to allow a party to raise issues in a second proceeding on the grounds that the matters raised were so closely connected with the earlier proceeding that it was unreasonable not to raise them during that earlier proceeding. [29] It was submitted that the Anshun principle was an extension of a principle expressed by Sir James Wigram Vice-Chancellor in Henderson v Henderson9, as follows: "… Where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject matter of litigation in respect of a matter which might have brought forward as part of the subject in contest, but which was not 8 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 9 Henderson v Henderson [1843] 67 E.R. 313 -- 6 of 8 -- 7 brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgement, but to every point which properly belonged to the subject of the litigation, in which the parties, exercising reasonable diligence, might have brought forward at the time.". [30] In Port of Melbourne Authority v Anshun Pty Ltd10, Murphy J stated (at paragraph [2]) "in this instance, the issue now sought to be raised was plainly open to be agitated in the previous litigation … there is no discretion to allow the raising of that issue against the unwilling defendant; the attempt to do so is properly characterised as an abuse of process.". [31] In the same decision, Brennan J (at paragraph [20]) referred to a passage from the judgement of Willes J in Nelson v Couch11 as follows: "Where the cause of action is the same, and the plaintiff has had an opportunity in the former suit of recovering that which he seeks to recover in the second, the former recovery is a bar to the latter action. To constitute such former recovery a bar, however, it must be shown that the plaintiff had an opportunity of recovering, and but for his own fault might have recovered, in the former suit that which he seeks to recover in the second action.". Mr Hart's response to the Department's application [32] Not surprisingly Mr Hart opposed the Department's application. In doing so, he essentially argued that not only were the matters subject of Matter No. B/2008/38 not determined by the Commission but also that those matters had not been heard by the Commission. [33] In this regard, Mr Hart argued that his overtime claim had not been determined because the claim was withdrawn. He also argued that the subject matter of Matter No. B/2010/25 (i.e. in the form in which it is now presented) had not been heard by Commissioner Thompson in the earlier proceedings. In the alternative, he argued that the Commissioner was misled about the detail of his earlier claim because of the nature of the arguments and evidence led by the department. [34] In respect of his claim for payment for non-attendance time, Mr Hart argued that that claim was never heard on the basis it was never raised "during the hearing phase". When it was raised at the beginning of submissions the Commissioner's suggestion that it be the subject of a conference before a different Commissioner was rejected by the Department. In the ultimate, Commissioner Thompson expressed a view that "the application would fail due to a lack of argument". However, the key point, according to Mr Hart, was that the matter was never heard. [35] Mr Hart also argued that it was his right, as the applicant in Matter No. B/2010/25, to submit evidence in relation to his claim and that it was the duty of the Commission to hear and examine the claim. He said this was a simple matter involving the proper calculation of underpaid wages payable to him by the Department. It was well within the authority of the Commission to determine the claim on the basis of the provisions of the Award and the Agreement. [36] In all the circumstances Matter No. B/2010/25 should be allowed to continue. Conclusions [37] After considering all of the material presented I have decided to grant the Department's application that the Commission refrain from further hearing Matter No. B/2010/25. [38] Matter No. B/2008/38 was lodged because Mr Hart disputed the Department's calculation of payments due to him as a result of his incorrect classification under the Public Service Award - State rather than the Award and Agreement that he should have been employed under. Included in his application was a detailed schedule which set out the particulars of the amounts claimed. Accompanying this schedule was a 19 point, two-page document, clarifying particular elements of the claim. Also attached to the application (as schedule 2) was a 16 page affidavit in which Mr Hart further developed his concerns about the way the Department had calculated the payments due to him as a result of his incorrect classification and Award coverage. [39] It is clear from the application and the transcript of Matter No. B/2008/38, that Mr Hart's major dispute with the Department concerned the way it had calculated additional payments said to be owing to him for contact hours 10 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 11 Nelson v Couch [1863] EngR 736 -- 7 of 8 -- 8 (payment in excess of 21 contact hours is to be paid at casual rates) and the way that it had calculated incidental and other duties payments which he was allegedly entitled to receive. [40] Mr Hart's fresh application (Matter No. B/2010/25) seeks to canvas exactly the same issues raised in Matter No. B/2008/38, being the balance of unpaid wages allegedly owed to him as a result of his incorrect classification as well as an amount said to be owed in respect of non-attendance time due to him pursuant to Schedule 2.2(a) and (b) of the Award. The only difference between the two matters is the nature of the argument(s) Mr Hart intends to raise in the fresh application. [41] On my reading of Commissioner Thompson's Decision of 15 September 2008, the Commissioner dismissed all elements of Mr Hart's (then) claim. In doing so, the Commissioner was not required to make any decision in respect of the major element of the claim, i.e. the overtime component, on the basis Mr Hart had informed the Commissioner he was no longer pressing that element because he had failed to establish the necessary evidentiary case to support it. [42] Similarly, Mr Hart's claim in respect of his alleged entitlements under Schedule 2.2(a) and (b) of the Award was rejected on the basis he had failed to present any evidence to support that element of the claim. [43] As such, Mr Hart is estopped by the res judicata principle from pursuing those matters on the basis they have already been heard and determined. [44] If I be wrong in my conclusion that Commissioner Thompson dismissed each element of Mr Hart's claim and he is estopped from pursuing them, it would nonetheless be the case that Mr Hart's attempt to re-litigate those matters already raised in Matter No. B/2008/38 constitutes an abuse of process and/or is estopped in accordance with the Anshun principle. [45] Save and except for the arguments he wishes to (now) mount in support of his claim, there is nothing different in the subject matter of matter nos. B/2010/25 and B/2008/38. The only difference, or so it appears, is the way Mr Hart intends to argue his case the second time around compared to the way he ran it in the first instance. [46] Having identified the mistakes he made in presenting his case in August 2008 he now seeks to overcome those failures and deficiencies by presenting fresh argument(s) about material(s) which has been in existence from the day he lodged his first application. [47] In my view it would be wrong to permit Mr Hart to prosecute the same application again in circumstances where, firstly he elected to "discontinue" his earlier proceedings because he had not established the necessary evidentiary foundation to support it and, secondly, where, with due care and diligence he could have presented the argument(s) he now wishes to mount. (Anshun12, per Murphy J at [2] and Brennan J at [20]; Henderson v Henderson13.) [48] Equally, it would be wrong to require the Department, some two and a-half years down the track, to have to (again) spend time, effort and resources in defending a claim which it has already been required to respond to. It is not the Department's fault that Mr Hart did not present his case in an appropriate way when he had the opportunity to do so. [49] Finally, it would be a waste of taxpayer monies to require the Commission to reconsider a matter which has already been before it which was voluntarily "withdrawn", in part, because of a lack of supporting evidence and where no evidence was presented in relation to the other part. [50] For the foregoing reasons I order, pursuant to s. 331(b)(ii), that the Commission refrain from hearing, further hearing or deciding matter no. B/2010/25 on the basis that further proceedings by the Commission are not necessary or desirable in the public interest. [51] I determine and order accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2010 4 November (argument re: legal representation) 15 November (s. 311(b) application) Released: 3 February 2011 Appearances: Ms K. Payne for the Applicant. Mr N. Hart on his own behalf. 12 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 13 Henderson v Henderson [1843] 67 E.R. 313 -- 8 of 8 --