Federal Court of Australia

Scott v Steritech Pty Ltd [2025] FCAFC 110

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The judgment of the Federal Court of Australia delivered on 14 November 2023 be set aside, and in lieu thereof it be ordered that the originating application be dismissed in so far as it seeks compensation under the Fair Work Act 2009 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Background

1    The appellant 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 appellant sued the respondent in what was then the Federal Circuit Court of Australia (the Circuit Court proceeding).

2    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)    breached various clauses of an applicable award and therefore contravened s 45 of the Fair Work Act 2009 (Cth) (the FW Act);

(b)    breached an implied term of his employment contract; and

(c)    contravened ss 340 and 352 of the FW Act in that his employment was terminated because of his exercise of workplace rights and because of a temporary absence due to illness.

3    The appellant 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.

4    The appellant and the respondent settled the Circuit Court proceeding by entering into a deed of release on 21 May 2020 (the deed). The deed obliged the respondent to pay the appellant $52,500 and treat that payment as an “eligible redundancy payment”. In exchange, the appellant 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.

5    Clause 7(a) of the deed barred future proceedings by the appellant 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.

6    On 19 June 2020 the respondent paid the appellant the sum agreed in the deed. The appellant discontinued the Circuit Court proceeding.

7    On 7 July 2022, the appellant commenced proceedings in this Court by filing an originating application and statement of claim (the Federal Court proceeding). In that proceeding 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, consult and support the appellant in the process leading to the termination of his employment, which were in breach of a duty of care owed by the respondent and caused him psychiatric injury.

8    The respondent filed an interlocutory application seeking to strike out the appellant’s statement of claim and summarily dismiss the proceeding.

(a)    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 barred by the deed.

(b)    The respondent also argued that the common law claim could not be heard in this Court because:

(i)    this Court has no express jurisdiction to hear such claims, and

(ii)    the FW Act claim could not provide a basis for the negligence claim to be determined by the Court as part of the same matter, because the FW Act claim was “unarguable”, referring to Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 276 CLR 216 at [36] (Citta Hobart).

9    On 14 November 2023 the primary judge ordered that the statement of claim be struck out and the proceeding be dismissed.

10    On 28 November 2023 the appellant filed an application for leave to appeal from the primary judge’s orders. With the agreement of the parties, the leave application was determined without an oral hearing. Leave to appeal was granted on 21 August 2024: Scott v Steritech Pty Ltd [2024] FCA 933.

The reasoning of the primary judge

11    Having set out the background and summarised the parties’ arguments, the primary judge observed that the facts upon which the appellant relied in the Circuit Court proceedings and the Federal Court proceedings were, “essentially, identical, being referable to the circumstances of the termination of Mr Scott’s employment by way of redundancy” (at [19]). Her Honour then turned to the deed, referring to its terms and to authorities on the construction of settlement agreements, and concluding as follows (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.

12    On the claim that the proceeding was an abuse of process (referable to r 26.01(d) of the Federal Court Rules 2011 (Cth)), the primary judge noted that the onus of establishing an abuse of process lies on the party alleging it and is a heavy one (at [26], citing UBS AG v Tyne [2018] HCA 45; 265 CLR 77 at [67] (Gageler J), [136] (Gordon J) (UBS v Tyne)) but also that, generally, relitigating proceedings that have been finalised constitutes an abuse (at [27]-[34], referring to authorities including Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 at [25]-[26] (French CJ, Bell, Gageler and Keane JJ) (Tomlinson)). Her Honour noted that the second of these propositions can extend to proceedings that have been discontinued as well as those that have proceeded to judgment (at [31], referring to reasoning of Dowsett J in Tyne (Trustee) v UBS AG (No 2) [2017] FCAFC 5; 250 FCR 341 that was effectively endorsed by the plurality in the High Court in UBS v Tyne). Given the agreement to settle the Circuit Court proceeding, the terms of the deed and the very substantial overlap between the pleaded facts in the two proceedings, 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.

13    However, as her Honour noted at [37], there remained a question concerning the scope of the closing words of cl 3(a) of the deed: “save for any claims made under workers’ compensation or superannuation law”. The appellant argued that the phrase “workers’ compensation … law” was ambiguous, so that extrinsic evidence was relevant to the construction of the expression in the context of the deed (an argument which, if accepted, was relevant to whether the proceeding could properly be disposed of on a summary basis). The primary judge rejected this argument, observing at [38]-[43]:

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.

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.

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.

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.

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.

Again, as was explained in Zoiti-Licastro, terms saving claims under workers’ compensation law are routine in settlement agreements.

(Emphasis in original.)

14    Having concluded that “workers’ compensation … law” must be a reference to the applicable legislation dealing expressly with compensation for workplace injuries, the primary judge pointed out two fundamental problems with any claim that the appellant might be taken to be advancing under or consistently with the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the WCR Act). The first was there was no material before the Court to establish that the appellant met requirements under s 237 of that Act (at [45]-[46]). The second was that no jurisdiction was conferred on the Court in respect of claims for damages for common law negligence, including claims “otherwise regulated by State law such as the WCR Act” (at [47]).

15    At [47] the primary judge also noted the submission made by the appellant that, even if his claims under the FW Act were dismissed, the Court would have jurisdiction to determine his claim for damages on the basis that it was part of the same “matter” as the FW Act claims (citing Rana v Google Inc [2017] FCAFC 156; 254 FCR 1 (Rana)). This principle was, as her Honour explained by reference to authority (at [49]-[51]), subject to an exception where the federal claim relied on to bring a case within federal jurisdiction was “colourable” or “unarguable”. Her Honour then said 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, 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 Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212], such that this Court does not have jurisdiction to hear it.

The issues in the appeal

16    The appellant relies on two grounds.

(a)    Ground 1 alleges that the primary judge erred by finding that the FW Act claim was barred by the deed, because no such finding should have been made on a summary basis without hearing relevant evidence (ie, evidence concerning the negotiation and execution of the deed which might shed light on what the parties meant by “workers’ compensation … law”).

(b)    Ground 2 alleges the following errors in the primary judge’s conclusions in relation to the common law claim:

(iii)    misapplying the concept of a “colourable” claim (and therefore concluding incorrectly that the Court did not have jurisdiction); and

(iv)    wrongly finding that the appellant’s common law claim was “invalid”.

17    The respondent has filed a notice of contention, picking up on an observation in the Court’s reasons for granting leave to appeal ([2024] FCA 933 at [25]) that the primary judge’s reasoning at [36] (quoted above at [12]) appeared to be relying on the effect of the deed and not on re-litigation of the earlier claims as an abuse of process per se. The notice of contention formally puts into play the argument that the Federal Court proceeding was liable to be dismissed as an abuse of process even if it was not barred by the deed. If correct, this argument renders ground 1 of the appeal inutile.

18    We will address the issues in the following order:

(a)    whether the primary judge should have held that that the FW Act claim was liable to be dismissed as an abuse of process regardless of the terms of the deed;

(b)    whether the primary judge erred in concluding that the FW Act claim was barred by the deed;

(c)    whether the primary judge was correct in holding that the damages claim was:

(v)    outside the Court’s jurisdiction; or

(vi)    precluded by non-compliance with the WCR Act.

The FW Act claim

Abuse of process (the notice of contention)

19    As noted earlier, the primary judge found that the facts alleged by the appellant in the Circuit Court proceeding and the Federal Court proceeding were essentially the same. What was different was the particular provisions of the FW Act that the appellant alleged had been breached on the basis of these facts and the addition of an associated claim in tort. The appellant does not question this assessment. If correct, it raises the question whether the allegation of breach of the FW Act sought to be advanced in the Federal Court proceeding gave rise to a circumstance “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” (cf Tomlinson at [25]), thus constituting an abuse of process.

20    The appellant seeks to resist such a conclusion on two bases.

21    The first of these bases is that, while abuse of process will at least ordinarily inhere in an attempt to re-litigate a case that has been determined (even where no estoppel arises), the same is not necessarily true where an earlier case has been brought to an end by discontinuance. Kiefel CJ, Bell and Keane JJ made this point in UBS v Tyne at [52], where their Honours observed that the vice in that case was discontinuing one plaintiff’s claim (with the remaining issues in the case proceeding to a final determination) and then seeking to pursue that claim in separate proceedings through a related party (see also at [55]). What was sought to be done in UBS v Tyne, and ultimately found to constitute an abuse of process by a majority in the High Court, amounted to manipulating the court system so as to litigate a complex multi-party dispute in stages in an attempt to gain forensic advantage. Discontinuance of an entire proceeding, on the other hand, may (as their Honours said at [52]) “work no unfairness to the defendant”. This, the appellant submits, is the position here.

22    We agree with this submission. Commencing a proceeding and then discontinuing it before any determination of the substantive issues, and then commencing a different version of the same case, does not in itself cause any unjust oppression to the other party or bring the administration of justice into disrepute. For such consequences to arise, something more must be shown: for example, “[s]erial proceedings discontinued prior to judgment” (cf UBS v Tyne at [46]), or (possibly) discontinuing after the other party has incurred substantial costs that cannot be recovered.

23    In the present case, what potentially makes the commencement of the Federal Court proceeding unjustifiably oppressive is the agreement, solemnly entered into and performed by the parties, pursuant to which the notice of discontinuance was filed in the Circuit Court proceedings. However, whether oppression arises in that way depends on the scope of the parties’ agreement and thus on the construction of the deed. Aside from the agreement embodied in the deed, the evidence is not sufficient to characterise the Federal Court proceedings as an abuse of process.

24    We will therefore dismiss the notice of contention.

25    The appellant’s second submission on the notice of contention is that the terms of the deed, on the appellant’s construction of it, constitute a complete answer: the deed, on that construction, expressly allows the appellant to commence proceedings of the present kind. If the circumstances of the case otherwise involved an abuse of process, we would reject this submission. The difficulty it faces (apart from its reliance on the appellant’s construction of the deed, which is discussed below) is that it depends on the parties having the capacity, by their agreement, to displace the power of the court to protect its processes from abuse.

26    The power of a court to stay or dismiss proceedings under this rubric arises in part from potential oppression of other parties to the proceedings (which, conceivably, those parties might contractually bind themselves to endure); however, it is also concerned with preventing the administration of justice from being brought into disrepute by becoming an instrument of such oppression or a tool of litigious chicanery (cf, eg, Tomlinson at [25] and UBS v Tyne at [59]). The example of a claim that has previously been litigated to a final judgment makes the point: a court would not tolerate being made the forum for re-litigation of the same claim and a potentially inconsistent judgment (other than by way of an appeal), even if the parties had made a private agreement for that to occur. Courts are, in short, organs of government and not commercial arbitrators whose services can be obtained whenever parties want them.

The deed (appeal ground 1)

27    This argument was developed before us only in connection with the FW Act claim. The same argument would seem to be potentially available in respect of the common law claim; however, it would not assist the appellant unless he first overcame the findings in respect of that claim that are the subject of ground 2.

28    There is a long history in most if not all Australian jurisdictions of legislation regulating the rights of employees and the obligations of employers in relation to injuries and ailments caused by work or arising in the workplace. Such legislation commonly provides for statutory no-fault compensation, conditional on a claim being made and specified criteria being satisfied, and limits the rights of workers to sue for damages at common law. Commonly, also, employers are required to maintain insurance policies or to contribute to an entity which is responsible for meeting compensation claims. The relevant legislation in Queensland (which, the primary judge assumed, would cover the appellant’s alleged injuries in this case) was the WCR Act.

29    The ordinary meaning of words used in a contractual document is a question of fact (see eg Baiada Poultry Pty Ltd v R [2011] VSCA 23; 203 IR 396 at [33] (Nettle JA)), but such issues of interpretation have long been treated by the courts as questions on which evidence is not admissible (see eg Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289 at 298-299 (Hill J)). The primary judge was therefore required to rely on her own understanding of what the expression “workers’ compensation … law” meant. However, there could be no objection to her Honour informing or confirming her understanding by considering the usage of the expression (or the shorter expression “workers’ compensation”) in the various contexts to which attention was drawn by the respondent’s submissions. Briefly, these contexts were academic commentary, the short titles and objects clauses of the Acts themselves, particular provisions of the FW Act and its extrinsic materials, and publications by regulatory bodies. In all of these contexts, the phrase “workers’ compensation” is universally applied to legislative schemes of the kind referred to in the previous paragraph. One can add to this list the Macquarie Dictionary and the Encyclopaedic Australian Legal Dictionary, which define the phrase “workers’ compensation” in terms consistent with the understanding upon which the primary judge proceeded. It was not necessary for these or any other materials to be formally adduced as evidence of the ordinary meaning of the expression (although some of the documents were annexed to an affidavit), and her Honour was not confined to evidence adduced by the parties on the issue. Further, contrary to a suggestion in the appellant’s submissions, we do not regard the material placed before the primary judge as establishing a “technical legal meaning” that was somehow narrower than the “ordinary meaning”. There was nothing to indicate widespread usage of the phrase “workers’ compensation … law” in any broader sense.

30    When these reasons were almost settled, the respondent (over objection by the appellant) drew our attention to three cases in which the expression “workers’ compensation” is discussed.

(a)    In Allianz Australia Workers Compensation (NSW) Limited v PPG Industries Australia Pty Limited [2004] ACTCA 28 (Allianz) the Australian Capital Territory Court of Appeal (Higgins CJ, Crispin P and Weinberg J) considered a (mandatory) exclusion clause in an insurance policy that referred to “compensation in the nature of workers compensation arising under any Act or other law of … a Territory”. At [27] their Honours said:

The phrase “workers compensation” has long been understood as referring to an entitlement to periodic payments to compensate an injured worker for medical expenses and/or loss of wages due to injury sustained during the course of the worker’s employment, irrespective of whether there has been any breach of duty by the employer. The concept is quite different from that of liability for common law damages obtained by a worker as a consequence of establishing that his injuries were attributable to negligence or breach of statutory duty on the part of the employer. The latter is not “in the nature of” the former.

(b)    Allianz was cited with apparent approval by Keane JA (Williams JA and McMurdo J agreeing) in Francis v Emijay Pty Ltd [2006] QCA 62; 2 Qd R 5 at [27]-[28], and by Refshauge ACJ, Penfold and Burns JJ in Workers Compensation Nominal Insurer v FAW Industries Pty Ltd and Insurance Australia Ltd [2017] ACTCA 2; 12 ACTLR 80 at [81], in the course of construing references to “workers compensation” in statutory provisions.

31    We have not treated these cases as binding authorities, because we understand the meaning of the phrase “workers’ compensation … law” in the context of the deed to be a question of fact. However, the passages referred to do provide some further support for our understanding of what the phrase means as a matter of ordinary language.

32    Ultimately, we see no error in proceeding on the basis that the ordinary meaning of “workers’ compensation … law” in Australia refers to legislation of the kind referred to above: a claim “under workers’ compensation … law” is a claim lodged pursuant to legislation of that kind and seeking relief provided for by that legislation. The phrase does not, in ordinary usage, extend to other bodies of law pursuant to which a person who is a “worker” may obtain “compensation” for personal injury or other kinds of damage arising from infringement of their rights.

33    The appellant takes issue with the primary judge’s finding at [38] that “[a] ‘claim made under workers’ compensation … law’ made by [the appellant] because of an injury suffered by him in the course of his employment with [the respondent] can only be a reference to a potential claim for damages, referable to the [WCR Act]”. He submits that the reference to “workers’ compensation … law” is ambiguous and that “extrinsic evidence” was therefore relevant to the construction of the deed.

34    For reasons outlined above, we do not agree that the expression is “ambiguous” if that is intended to convey that it has no settled meaning or has more than one meaning in everyday parlance.

35    Additionally, noting that the meaning of a term in a document can never be properly ascertained without some regard to its context, it should be observed that the context in which the expression “workers’ compensation … law” appears in the deed is stony ground for the cultivation of any inference that it was intended to extend to a broader class of legislation or legal doctrines including (relevantly) the FW Act. Compensation under the FW Act was part of what the appellant had sought in the Circuit Court proceeding, and thus a central aspect of the dispute that the parties were settling when they executed the deed. It would be rather surprising if the respondent, having agreed to pay a sum of money to settle that claim, had agreed to carve out claims of the same nature, arising from the same facts, from the general release in the deed and the provision barring future claims. A contextual reading of the relevant clauses of the deed therefore does not give rise to any uncertainty concerning what is meant by “workers’ compensation … law”.

36    We doubt, however, that “ambiguity” in the language of a release clause is necessarily a prerequisite for the relevance of evidence extrinsic to the deed. The authority to which the appellant refers in this connection (Arrowsmith v Micallef [2013] QCA 143; [2015] 2 Qd R 208 at [44] (Peter Lyons J, White and Gotterson JJA agreeing)) appears to accept that, apart from cases of ambiguity, extrinsic evidence can also be necessary for the proper construction of a release in a settlement deed because of the nature of such a provision. At [43], his Honour referred with apparent approval to the following statement by Gleeson CJ and Handley JA in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29 (Gubbins):

The rule is that the general words of a release will, in an appropriate case, be read down to conform to the contemplation of the parties at the time the release was executed.

37    Conceivably, therefore, evidence of what was in “the contemplation of the parties” at the time of execution of the deed might be admissible to establish that the release granted by cl 3(a) is narrower than a strict reading of its terms suggests (including by establishing that the carve-out referring to a claim under “workers’ compensation … law” is broader than the ordinary meaning of that expression). No such evidence was before the primary judge. However, the appellant argues that the potential for such evidence to be led — and for a real evidentiary contest to arise concerning the intended scope of the release — made it inappropriate to decide the point on a summary judgment application.

38    We reject this submission. Evidence can, of course, be adduced on an application for summary judgment. Further, “if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary” (Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [29(f)] (McKerracher J) (Prior), citing Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372 at [127] (Gordon J)). The meaning and effect of cls 3(a) and 7(a) of the deed were (at least prima facie) reasonably clear and fatal to the prospects of success of the FW Act claim. In these circumstances, if evidence existed that was capable of leading to the clause being given a different meaning, it was up to the appellant at least to show that such evidence existed and there was an issue of fact that should go to a final hearing. Any such evidence must have been within his knowledge. A broad assertion in submissions that extrinsic evidence was necessary to interpret the clause was insufficient.

39    It is true that no orders were made for the filing of affidavit evidence by the appellant on the respondent’s summary dismissal application. However, there is nothing before us to indicate that the appellant sought such orders or made any attempt to file evidence. (It appears from the Court file in the proceeding below that no orders at all were made as to the filing of evidence; yet two affidavits lodged by the respondent were accepted for filing and relied upon at the hearing. The obvious inference is that any evidence filed by the appellant would have been allowed to be read.) The primary judge might well have fallen into error if she had rejected admissible evidence sought to be led by the appellant and then decided the application on a ground to which that evidence was relevant; however, it was not suggested that this occurred and there is no basis to infer that it did.

40    For these reasons, there was no error by the primary judge in proceeding on the understanding that the FW Act claim was not a claim under “workers’ compensation … law” within the meaning of cls 3(a) and 7(a) and was therefore caught by those provisions.

41    The appellant also seeks to advance a separate submission as to why extrinsic evidence was necessary in order to determine the effect of the deed. This is that a court will restrain a party from relying on terms as wide and general as cls 3(a) and 7(a) of the deed, if such reliance would be unconscientious. To decide whether reliance is unconscientious, “the court will examine the knowledge and intention of both releasor and releasee as to the subject matter on which the release would operate” (Sarina v Fairfax Media Publications Pty Ltd [2018] FCAFC 190; 365 ALR 15 at [21] (Rares, Markovic and Bromwich JJ)). We understand this proposition — which obviously invokes equitable concepts — to be distinct from the “rule” referred to in Gubbins (at [29]) that a release may be “read down”, although clearly covering much of the same ground.

42    This, if anything, is an even clearer example of a point that required some evidence to be adduced by the appellant (not merely hinted at in general terms) if it was to be used to resist a summary dismissal application. The material before the primary judge showed that the appellant had been represented by solicitors throughout the Circuit Court proceedings and in negotiating the terms of the deed. Nothing in the terms of the deed or the history of its coming into being has been pointed to as suggestive of any circumstance that would make it unconscientious for the respondent to rely on its full effect. In the light of the “onus” referred to in Prior (above), the abstract possibility that such circumstances might exist was insufficient to resist what was otherwise a fairly clear case for summary dismissal.

43    For these reasons, ground 1 must be rejected

The common law claim (appeal ground 2)

Jurisdiction

44    At [51] the primary judge set out the following extract from Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219 (Bowen CJ, Morling and Beaumont JJ) (Burgundy Royale).

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. 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. 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.

(Emphasis and citations omitted.)

45    It follows uncontroversially from these observations that the holding that the FW claim was liable to be summarily dismissed (in respect of which we have found no error) did not of itself result in the Court lacking jurisdiction to deal with the common law claims. The Full Court in Burgundy Royale at 219 observed, however, 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”. What is slightly unclear about this passage is how the reference to a claim being “unarguable” relates to the issue whether the claim is “colourable” in the sense described: experience shows that it is not uncommon for claims to be advanced that are “unarguable” but are not advanced for any improper or collateral purpose.

46    A later Full Court in Rana at [21] made the same point as had been made in Burgundy Royale concerning the existence and continuation of federal jurisdiction in relation to the whole of a matter even if the claim that attracted that jurisdiction is struck out. Citing Burgundy Royale, the Court framed the exception to this principle as follows (at [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.

(Emphasis added.)

47    More recently, in Citta Hobart, the majority (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) framed the issue in the following way (at [34]-[37]):

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.)

48    The formulation in Citta Hobart appears to involve two elements. First, a claim or defence that prima facie engages federal jurisdiction will not do so if it is not “genuinely in controversy”. This suggests that, if the claim or defence is not being genuinely pursued (and is thus, by inference, merely a device for attracting federal jurisdiction), it is “colourable” in the relevant sense; however, there is no occasion beyond this for an inquiry into the subjective purposes of the party raising the claim or the defence, and no “threshold of arguability”. Secondly, a claim is “colourable” if it amounts to “legal nonsense”; however, that concept does not call for an examination of the prospects of success of a “legally coherent claim or defence”. The distinction between a claim that is “untenable” (in the sense relevant to an application for summary dismissal) and one that is “incapable on its face of legal argument” (so as to be colourable) was noted and applied in Tucker v McPhee [2022] FCAFC 98; 292 FCR 666 at [71] (Allsop CJ, Kenny and Jagot JJ) (Tucker)).

49    The primary judge’s conclusion (at [52]) has been set out above. The sentence that reads “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’ …, such that this Court does not have jurisdiction to hear it” initially appeared to us to involve a drafting slip but may, on reflection, indicate that her Honour’s attention was being directed to the wrong issue. It was the Court’s jurisdiction in respect of the common law claim that was in issue, on the footing that the FW Act claim was allegedly “colourable”. Be that as it may, this paragraph does not, with respect, explain which of the tests in Citta Hobart was failed by the FW Act claim so as to make it “colourable” in the relevant sense.

50    We do not understand the respondent to submit that the FW Act claim is “legal nonsense” in the sense referred to in Citta Hobart. Plainly, it is not; it is a “legally coherent” claim under the FW Act for remedies for which that Act provides, notwithstanding that the primary judge correctly held that it was not maintainable in the face of the deed.

51    The respondent submits that the question is “whether the Appellant genuinely believed that he would be able to claim damages under s 545 of the FW Act for breach of a consultation obligation, or whether the claim was made simply so that the Common Law Claim could be brought before the Federal Court”, and that the primary judge “impliedly” concluded that the latter was the case. There are two points to be made about this.

52    First, the formulation in Citta Hobart draws attention to whether a claim is “genuinely in controversy” and “genuinely raised”. This indicates that the question is whether the claim is being advanced in a bona fide attempt to obtain some identified relief from the Court. Beyond that, Citta Hobart does not call for an examination of the claimant’s thought processes. Hence, while a claim that is not raised for any proper reason is taken to be a mere device to attract federal jurisdiction (and thus “colourable”), the same is not true of a claim that is merely weak (or able to be defeated by some clearly available defence) and might have been included because the claimant would prefer to litigate in a federal court. This understanding accords with what was said in Tucker at ([69]-[70]).

53    In the present case, the FW claim had an obvious problem in that the deed could be raised in answer to it. However, it does not follow that the appellant was not genuinely seeking relief under the FW Act. That relief flowed logically from the claim that was advanced and had obvious utility for the appellant. There was no obvious forensic advantage to the appellant in bringing his common law claim in the Federal Court rather than a State court. Further, there was an argument (albeit, so far as the material before us shows, a weak one) that the deed did not apply.

54    Secondly, if the appellant’s subjective motivations need to be considered, this is a question of fact upon which the respondent (as the party seeking summary dismissal) bore the onus. The primary judge did not articulate any finding on this point — merely observing that the appellant had not explained why he was seeking to re-litigate the earlier proceeding — and, to the extent that the respondent contends for such a finding, it should have been included in the notice of contention.

55    In any event, consistently with s 140(2) of the Evidence Act 1995 (Cth), and the general principle referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 (Dixon J), the Court would not be satisfied that the appellant had knowingly advanced a hopeless claim in order to attract federal jurisdiction on the basis of “inexact proofs, indefinite testimony, or indirect inferences”. The appellant did not make any admissions in this respect, and the respondent did not go into evidence except to the extent of placing before the Court the correspondence between the parties. That correspondence included a letter dated 28 July 2022 in which the appellant’s solicitors expressed the view that the deed reserved to him the right to sue the respondents for a work-related injury. Absent evidence to the contrary, this view should be taken to have been advanced on the appellant’s instructions. The material before the primary judge was thus not sufficient to found an inference that the appellant’s pursuit of the FW Act claim was not bona fide.

56    For these reasons, the primary judge erred in holding that the Court did not have jurisdiction to determine the common law claim. We discuss the consequences of this conclusion below.

The WCR Act

57    Ground 2 of the appeal, as noted above, also includes an allegation that the primary judge erred in finding that the common law claim was “invalid”. The extent to which the primary judge relied on that finding is unclear. The respondent does not seek to uphold the judgment on the basis of such a finding.

58    At [45] her Honour set out the text of s 237 of the WCR Act, which relevantly 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 in original.)

59    Her Honour then observed at [46] that there was no evidence that the appellant satisfied s 237(1) and “[t]o that extent any claim by him for damages under the WCR Act is invalid”.

60    The first point that should be noted is that “damages” is defined in s 10 of the WCR Act so as to exclude liability under statute. We therefore understand s 237 as a provision seeking to control who can sue for common law damages in respect of a workplace injury and in what circumstances. Section 237 is not expressed as a jurisdictional provision, and it is hard to see how a State statute could control the jurisdiction of a federal court. However, it seems clear that an action for damages at common law “for an injury sustained by a worker” (within the meaning of the WCR Act) is not maintainable in any court unless the requirements of s 237 are met. This may be what her Honour meant by “invalid”.

61    The second point to note is that non-compliance with s 237, if put as a threshold issue supporting summary dismissal, would need to be alleged and established by the respondent. The respondent would need to point to some evidence that the appellant had not received a notice of assessment for the purposes of s 237 (eg by serving a notice to produce and tendering the response). Absence of any evidence was not sufficient.

62    The third point to note is that the respondent’s argument before the primary judge was that the appellant had failed to plead compliance with s 237, not that he did not in fact comply (which probably explains the lack of evidence on the point from either side). If this was a flaw in the statement of claim, it was obviously remediable in the event that the appellant did have a notice of assessment for the purpose of s 237(1) (and there is evidence before us that he did). The point was therefore one which might have supported the striking out of the appellant’s statement of claim but could not have justified summary dismissal. (We have not heard detailed argument on the pleadings issue and express no view on it.)

63    For these reasons, there was not a proper basis for holding that the common law claim was “invalid” for reasons arising from s 237.

Resolution

64    The primary judge did not err in holding that the FW Act claim was liable to be summarily dismissed. However, we have concluded that her Honour did err in holding that the common law claim was not within the jurisdiction of the Court.

65    As noted earlier, there appears to us to be a real question as to whether the deed also bars the common law claim. However, the primary judge’s conclusions as to the effect of the deed are expressed only by reference to the FW Act claim (at [24], [36], [52]), and her Honour’s conclusions in relation to the common law claim are correspondingly limited to the issue of jurisdiction. No party argued before us that her Honour also relied on the deed, or should have relied on it, in respect of the common law claim.

66    In these circumstances the appropriate orders are:

(a)    the judgment under appeal be set aside; and

(b)    in lieu thereof, it be ordered that the originating application be dismissed in so far as it seeks compensation under the FW Act.

67    Whether any part of the statement of claim should be struck out as a consequence of these orders is a question best dealt with by the primary judge.

68    Neither party sought their costs of the appeal. We would in any event have made no order as to costs, in the light of s 570 of the FW Act and the partial success achieved by both parties.

Associate:

Dated:    22 August 2025