CHR Group Pty Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland [2004] QIRC 171 (2004) 177 QGIG 280

280 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 8 October, 2004 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 331 – application to dismiss CHR Group Pty Ltd AND Automotive, Metals, Engineering, Printing and KindredIndustries Industrial Union of Employees, Queensland (Case No. B1339 of 2004) COMMISSIONER BLADES 22 September 2004 -- 1 of 2 -- 8 October, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 281 Application under Chapter 4 Freedom of Association provisions of Industrial Relations Act 1999 – Application to strike out alleging abuse of process – Previous determination of unfair dismissal application on basis employee was a short term casual and an excluded employee – Whether a short term casual or not is irrelevant to an application under Chapter 4 – Held no estoppel and no abuse of process – Strike out application dismissed. DECISION This has been a hearing on the papers. The applicant CHR Group Limited (CHR) seeks an order that application No. B2110 of 2003 constitutes an abuse of process in that it seeks to relitigate a matter which has already been disposed of. The application seeks a determination that B2110 of 2003 does in fact constitute an abuse of process. The application seeks that B2110 of 2003 be struck out as an abuse of process under s. 326 of the Industrial Relations Act 1999 (the Act) and/or such other authority as the Commission may deem appropriate in the circumstances. Application B2110 of 2003 is an application brought by the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland on behalf of Vincent Charles Fenech against CHR under the provisions of s. 104 and 120 of the Act, the Freedom of Association provisions. CHR alleges that the matter of B2110 of 2003 has previously been dealt with as B98 of 2003 and that B2210 of 2003 is an attempt to litigate anew a case which has already been disposed of by earlier proceedings. Application B98 of 2003 was an application in the unfair dismissal jurisdiction of the Commission. The application never proceeded to trial. CHR through its representative raised a preliminary jurisdictional point that Mr Fenech was an excluded employee pursuant to s. 72(1)(c) of the Act in that he was a short term casual employee. The Commission accepted that argument (2003) 173 QGIG 486, and held that Mr Fenech was an excluded employee and, obviously, that the Commission had no jurisdiction to proceed further. In other words, there was no hearing on the merits. It is difficult to understand the application to invoke the provisions of s. 326 of the Act because s. 326 deals only with Interlocutory proceedings. But because the application also invites the Commission to apply “such other authority as the Commission may deem appropriate”, attention should be directed to s. 331 which provides, in part: “The court or commission may, in an industrial cause – (a) ... (b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers – (i) the cause is trivial; or (ii) further proceedings by the court or commission are not necessary or desirable in the public interest; or (c) ...”. If a proceeding constitutes an abuse of process, further proceedings would not be necessary or desirable in the public interest. Osborn’s Concise Law Dictionary 4th ed defines an abuse of process as “a frivolous or vexatious action; setting up a case which has already been decided by a competent court”. This raises questions of estoppel and Cross on Evidence refers to two types of estoppel by record, viz. res judicata and issue estoppel. Res Judicata is where one party brings an action against another for a particular cause and judgment is given on it, there is a strict rule of law that he cannot bring another action against the same party for the same cause. Issue estoppel is where a judicial determination directly involving an issue of fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. In circumstances where neither res judicata nor issue estoppel can be raised, it has been held that an attempt to relitigate against another party an issue already determined may amount to abuse of process – Haines v ABC (1995) 43 NSWLR 404 at 410 and is a third form of estoppel by record – Neil Pearson & Co Pty Ltd v Comptroller-General of Customs (1995) 127 FLR 350 at 358. No judgment has been given on the cause raised by Mr Fenech alleging an unfair dismissal. Mr Fenech’s case has not been “run and lost” as has been submitted. The only issue of fact or law that has been determined and the only issue that was put in contest was that the applicant was an excluded employee because he was a short term casual. What was spoken about in the dismissal conference is irrelevant. The only issue that cannot be litigated further is whether the applicant is a short term casual. Because he was a short term casual means he cannot litigate the unfair dismissal claim because he is an excluded employee. Chapter 4 of the Act relating to Freedom of Association does not contain similar exclusions to the jurisdiction of the Commission as does Chapter 3 relating to Dismissals. Whether an employee is or was a short term casual is irrelevant to an application brought under Chapter 4. That is the only decision which can raise an estoppel between the parties. Otherwise there has been no hearing on the merits of the applicant’s claim. There is no estoppel and no abuse of process. O’Connor J in Burton v the President of the Shire of Bairnsdale (1908) 7 CLR 76 at 92 said: “Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed.”. Almost as an afterthought, CHR reveals that the owners of the company have sold the business, have effectively ceased trading and gone into retirement, that they do not undertake recruitment, labour hire or similar activity and have no business or position to which Mr Fenech might be restored. Because of that, it is said that it is not possible for Mr Fenech to be reinstated or re-employed. The submission misses the point that the employer is alleged to have been CHR Group Limited, not the owners. The submission confuses the difference between a company as a legal entity in its own right, no matter who owns it and its owners and directors. A company must be treated like any other independent person with its rights and liabilities appropriate to itself – Salomon v Salomon & Co Ltd (1897) A.C. 22. It might well be a different matter if CHR itself has ceased trading but that is not what is alleged. The application to strike out is dismissed. B.J. BLADES, Commissioner. Hearing Details: 2004 17 September (Statement of contention received) 21 September (Written response received) Released: 22 September 2004 Appearances: Mr C. Joy, of Craig Joy Workplace Consulting, as agent for CHR Group Limited. Mr E. Moorhead, for the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (for Vincent Charles Fenech). -- 2 of 2 --