FEDERAL COURT OF AUSTRALIA

Horsman v Commissioner of Main Roads [1999] FCA 1733

ESTOPPEL – estoppel by conduct - assumption or expectation that issue of unfair dismissal would not be further litigated or reviewed – finding by trial judge that applicant estopped – no error shown.

INDUSTRIAL LAW – award of costs under Industrial Relations Act 1988 – where applicant instituted proceedings before primary judge “without reasonable cause” – no error shown.

Industrial Relations Act 1988

Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1988) 81 FCR 475 referred to

Forbes v Australian Yachting Federation Inc (1996) 131 FLR 241 referred to

Mortgage Acceptance Nominees Ltd v Australian Thoroughbred Finance Pty Ltd (1996) 69 SASR 302 referred to

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 referred to

Anderson v Commonwealth Bank of Australia (Lindgren J, 29 September 1995, unreported) referred to

BARRY STANLEY HORSMAN v COMMISSIONER OF MAIN ROADS

W 50 of 1999

SPENDER, WHITLAM and CARR JJ

3 DECEMBER 1999

PERTH

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

SPENDER J:

1                     This is an appeal from orders of a single judge of this court, R.D. Nicholson J, who on 2 June 1999 dismissed with costs an application by Barry Stanley Horsman for the imposition of a penalty under the provisions of the Industrial Relations Act 1988 for breach or non-observance of an award, a declaration that the dismissal of Mr Horsman from his employment with the Commissioner of Main Roads "is null and void", payment to Mr Horsman of the amounts due under his contract of employment by the Commissioner of Main Roads that had not previously been paid, damages for breach of contract, interest, and costs.

2                     A minute of Mr Horsman's application is dated 10 September 1998.  It is clear that the common law claims in his application to the Federal Court could be litigated in this Court only if they were part of the same constitutional matter as his claim in respect of unlawful dismissal.

3                     The respondent, the Commissioner of Main Roads, claimed in its amended reply that the decision of Commissioner Laing in the Australian Industrial Relations Commission in Australian Workers Union v Main Roads Department, delivered on 6 November 1992, in which it was held that the respondent had not acted harshly, unjustly, or unfairly in terminating the applicant's employment, had the effect that, by operation of the doctrine of issue estoppel by conduct or agreement, it was not open to Mr Horsman to argue the matter the subject of his Federal Court application. 

4                     The learned primary judge held that Mr Horsman was estopped by his conduct from pursuing his claim in the Federal Court.  His Honour held:

"The issue of unfair dismissal is intrinsically at the foundation of the alleged claim in contract. 

Furthermore, the finding made in the reasons of the 13 April 1999 [these are reasons of his Honour earlier in relation to the issue of estoppel] referred to the assumption that such issue would not be further litigated or reviewed.  The recasting of the issue in the form of another cause of action does not enable it to be characterised as other than re-litigation or review of the same issue on which the assumption or expectation was based.

5                     His Honour considered that the appropriate remedy was for the application of Mr Horsman to be dismissed.  He said:

"Such remedy is proportionate to the detriment since it would do no more than avoid the detriment to the respondent of further litigation and would not be inequitably harsh to the applicant: Commonwealth v Verwayen [(1990) 170 CLR 394], at 413 and 443 per Mason CJ and Deane J, respectively.

6                     In addition, his Honour awarded the respondent the costs of the application, holding that:

"…the applicant acted unconscionably in bringing the proceedings after inducing the respondent to assume the finality of proceedings following the Commission's recommendations and the respondent's payment to the applicant (which payment the applicant sought and accepted).

7                     It was in that circumstance that his Honour awarded costs, holding that the applicant instituted the proceedings "without reasonable cause", that being the condition on which an order for costs might be made in proceedings which rely on the Industrial Relations Act 1988.

8                     The notion of equitable estoppel is grounded in the concept of unconscionability.  In Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1998) 81 FCR 475 the Full Court of the Federal Court (Lockhart, Lindgren and Tamberlin JJ) discussed at 511 the general principles.  Their Honours said at 511:

"The principles on which remedies based on equitable estoppel, including promissory estoppel, are available are by no means clear or precise.  This is reflected in the substantial developments in the case law, particularly over the past two decades, and in the extensive range of discussions and articles on this topic over that period.  The relief is broadly grounded in the notion of unconscionability, but the ways in which the principles are applied to specific circumstances have been the subject of differing formulations.  This area of equity is still in the process of development and extension.

So far as the present case is concerned, the authorities referred to by his Honour provide helpful guidance.

The first of these is Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.  In that case Brennan J, speaking of 'equitable estoppel' in the context of negotiations for a lease, where terms had been agreed but no formal exchange had been effected, formulated a number of considerations to be taken into account in determining whether an equitable estoppel is made out.  He outlined those considerations as follows (at 428-429):

'In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.'

Mason CJ, Wilson, Brennan and Deane JJ held that, notwithstanding that there had been no formal exchange of documents, Waltons was estopped from denying that it was bound, because, knowing the owner was exposing himself to detriment by acting on the basis of a false assumption, it was unconscionable to encourage him, by inaction, in the course that he had adopted.  Deane J (at 449) saw no reason, as a matter of underlying rationale, why representations or assumptions about future conduct should be excluded from the reach of estoppel either in law or equity.  His Honour also observed that the distinction between a representation or assumption of existing fact or one of future action or inaction had always sat 'uncomfortably' with the general notions of 'good conscience and fair dealing which underlay common law, as well as equitable doctrines of estoppel by conduct'. "

Their Honours also said at 512:

"In Austotel Pty Ltd v Franklins Selfserve Pty Ltd [(1989) 16 NSWLR 582], ... Priestley JA considered the line of authority in relation to estoppel, which had developed from the Privy Council decision in Plimmer v City of Wellington (1884) 9 App Cas 699.  Although, in the final result, Priestley JA dissented, his distillation of the relevant principles was accepted as 'cogent' by a Full Court of this Court in S & E Promotions Pty Ltd at 653.  He considered that Plimmer was (at 604):

'…a clear example, where a plaintiff, despite being unable to point to some agreement which, although unenforceable, contains precise terms describing what he expected from the defendant, has nevertheless been held to be entitled to equitable relief which may be of a proprietary kind.'

He then formulated the relevant proposition as to equitable estoppel in the following terms (at 610):

'For equitable estoppel to operate there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed or an interest granted to the plaintiff by the defendant, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable. (emphasis added)."

9                     In the light of the remarks just set out, the central question on this appeal is whether the evidence established that Mr Horsman created or encouraged an assumption by the respondent that he, Mr Horsman, would be bound by the Commissioner's recommendation if the proceedings before the Commissioner took place, that the respondent acted on that assumption, and that it would be contrary to good conscience for Mr Horsman to be permitted to depart from that assumption he had generated.  In Forbes v Australian Yachting Federation Inc (1996) 131 FLR 241, Santow J said at 285, under the heading "Equitable Estoppel":

"I first set out what I consider to be the clearest synthesis of the propositions that have emerged concerning equitable estoppel since Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.  I refer to that by Priestley JA in Sivoli Pty Ltd v Barbaro (1988)  13 NSWLR 466 at 472:

'The following can I think be distilled from the reasons in Waltons notwithstanding the somewhat different language used by the different judges: (1) Common law and equitable estoppel are separate categories, although they have many ideas in common; (2) Common law estoppel operates upon a representation of existing fact, and when certain conditions are fulfilled, establishes a state of affairs by reference to which the legal relation between the parties is to be decided.  This estoppel does not itself create a right against the party estopped.  The right flows from the court's decision on the state of affairs established by the estoppel; (3) Equitable estoppel operates upon representations or promises as to future conduct, including promises about legal relations.  When certain conditions are fulfilled, this kind of estoppel is itself an equity, a source of legal obligation; (4) Cases described as estoppel by encouragement, estoppel by acquiescence, proprietary estoppel and promissory estoppel are all species of equitable estoppel; (5) For equitable estoppel to operate in circumstances such as those of the present case there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable; (6) Equitable estoppel may lead to the plaintiff acquiring an estate or interest in land, that is, in the common metaphor, it may be a sword; (7) The remedy granted to satisfy the equity (which either is the estoppel or created by it) will be what is necessary to prevent detriment resulting from the unconscionable conduct."

10                  The proposition 5 in that passage was expanded by his Honour Priestley JA in the quote from Austotel which has been earlier set out.  It is that formulation which seems to me to be most pertinent to the circumstances of this case. 

11                  Doyle CJ of the Supreme Court of South Australia in Mortgage Acceptance Nominees Ltd v Australian Thoroughbred Finance Pty Ltd (1996) 69 SASR 302 at 304 referred to the High Court decisions of Waltons Stores (Interstate) Ltd v Maher (supra) and Commonwealth v Verwayen (supra).  His Honour then continued:

"The judgments in those cases on a number of occasions make it clear that it is unwise to attempt to state in a comprehensive and definite fashion the manner in which a promissory estoppel may be established.  There are two reasons for this.  The first is that the relevant principle is founded upon the prevention of unconscionable conduct, and experience has taught us that equitable principles founded upon such notions defy precise definition.  The second reason is that the law in this area is still developing, and an attempt at precision may give a false sense of certainty."

12                  Notwithstanding those factors, his Honour referred to two passages in the joint judgment of Mason CJ and Wilson J in  Waltons v Maher (supra).  In the first of these passages their Honours observed at 399:

"Promissory estoppel certainly extends to representations (or promises) as to future conduct ... So far the doctrine has been mainly confined to precluding departure from a representation by a person in a pre-existing contractual relationship that he will not enforce his contractual rights, whether they be pre-existing or rights to be acquired as a result of the representation.

However, at 406 their Honours said:

"The foregoing review of the doctrine of promissory estoppel indicates that the doctrine extends to the enforcement of voluntary promises on the footing that a departure from the basic assumptions underlying the transaction between the parties must be unconscionable.  As failure to fulfil a promise does not of itself amount to unconscionable conduct, mere reliance on an executory promise to do something, resulting in the promisee changing his position or suffering detriment, does not bring promissory estoppel into play.  Something more would be required.  Humphreys Estate [[1987] AC 114]] suggests that this may be found, if at all, in the creation or encouragement by the party estopped in the other party of an assumption that a contract will come into existence or a promise will be performed and that the other party relied on that assumption to his detriment to the knowledge of the first party."

13                  Further, in Anderson v Commonwealth Bank of Australia (29 September 1995, unreported) Lindgren J was concerned with circumstances where Mr and Mrs Anderson, having taken part in an arbitration pursuant to an arbitration agreement, sought to have that agreement set aside and have their claims litigated in the Federal Court.  His Honour held that they had elected in favour of the arbitration agreement, and against its being rescinded or set aside, but his Honour also found that, in the alternative to having made an effective election:

"…Mr and Mrs Anderson are estopped from asserting the case which they propound for the setting aside of the Arbitration Agreement and the Arbitration Award.  By their conduct from 14 June 1994 down to the filing of their Amended Application on 13 June 1995 at the earliest, they led the Bank to assume that they were treating themselves as bound by the arbitration process and its result.  To the Andersons' knowledge, the Bank acted on that assumption to its detriment by incurring the substantial costs associated with the arbitration (fees of solicitors and senior and junior counsel of a six-day hearing and of written submissions down to 9 March 1995, the arbitrator's fees and cost of transcription services which the Arbitration Agreement required the Bank to bear, and the time of the Bank's staff) and it would be unconscionable for Mr and Mrs Anderson now to renege.  For the proposition that an estoppel arises in such circumstances many authorities could be cited, but it suffices to refer to Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387."

14                  On this appeal, counsel for Mr Horsman contends that there was no evidence that the respondent assumed that the proceedings before the Commissioner would preclude the appellant from taking further proceedings, or that Mr Horsman knew of that assumption.  It is further submitted that there was no evidence that Mr Horsman understood the union's undertaking to bind him.  It was also submitted on behalf of Mr Horsman that there could be no legal relationship between the appellant and the respondent, since Mr Horsman was not a party to the proceedings before Commissioner Laing.

15                  It was also sought to be contended on behalf of Mr Horsman that there was insufficient material from which a clear inference could be drawn that the respondent relied on the assumption.  In particular it was pointed out by counsel for Mr Horsman that the respondent gave no such evidence before the learned primary judge, and in particular, no evidence as to its knowledge or its reliance.  It was further submitted that there was no evidence from which to conclude that Mr Horsman knew or intended that the commissioner for Main Roads acted in reliance on the assumption, nor that the Commissioner for Main Roads understood the appellant to be acquiescing in the undertaking that had been offered before the Commission.  It was submitted that there was no evidence to show that the respondent was aware that he was not compelled to participate in the proceedings but did so because of the appellant's acquiescence.  It is also finally submitted that there was a lack of proportion between the detriment suffered by Mr Horsman and holding in favour of the respondent on the question of estoppel.

16                  In those circumstances it is necessary to have regard to the evidence in some detail.

17                  First, in a letter dated 9 June 1992, Mr Bruce Wilson, the branch secretary of the Australian Workers' Union, West Australian branch, wrote to Mr Horsman.  The letter was headed "Re Your Unfair Dismissal Claim" and referred to an unsigned letter dated 28 May 1992.  That letter was not in evidence before either the learned primary judge or this court.  The body of Mr Wilson's letter is in the following terms:

"I refer to your unsigned letter dated the 28^th May 1992.

In it you make a number of suggestions about possible actions the Union could take as a result of your dismissal by the Main Roads Department.  Your suggestions are noted.  However, in my view, surveying AWU members and calling meetings of the Union's Executive will not in may (sic) way further your unfair dismissal claim.

As you have previously been advised by representatives of this Union, the Union is willing to represent you in an unfair dismissal claim conducted as a private arbitration before Australian Industrial Relations Commission.  As you note in your letter this private arbitration is to be conducted by Commissioner Laing on the 13^th July 1992.

Representative (sic) of this Union have previously explained to you that Commissioner Laing is insisting that both parties to the private arbitration agree to be bound by its outcome prior to the private arbitration commencing.  If you do not give this undertaking then Commissioner Laing has indicated he will not privately arbitrate your unfair dismissal claim.

The Union has received legal advice that the only alternative avenue of redress you have to a private arbitration before Commission, is a common-law unfair dismissal claim.  The Union's legal advice is that the Award which governed your employment is not in an appropriate form for you to issue proceedings in the Federal Court.

In view of this advice, I have formed the view that your position is best advanced by proceeding to a private arbitration before Commissioner Laing.  To do so you will have to give the necessary commitment.  Provided you give the necessary commitment the Union will represent you at the private arbitration.

If you decide to proceed with a common-law unfair dismissal claim, then you will have to proceed with such a claim on your own behalf and at your own cost.  As has previously been explained to you it is the Union's policy to provide assistance to members with claims before industrial tribunals, not before the ordinary courts.

I have enclosed for you a form indicating that you wish the private arbitration before Commissioner Laing to proceed and that you will consent the (sic) abide by its outcome.

Until you sign this form and return the signed copy to me, I will instruct the Union's Industrial Officers to take not (sic) further action on your claim.  Upon receipt of the signed form I will immediately instruct an Industrial Officer to begin preparation of your claim for private arbitration.  If I have not received the signed form from you before the close of business on Monday 6^th July 1992, I will assume you do not wish to proceed with the private arbitration and I will advise the Commissioner's Associate and the Main Roads Department accordingly.

The choice for you in this matter is a clear one.  Either you wish to have this matter arbitrated by Commissioner Laing or you do not.

I am of the view that you have received sufficient advice from the Union to now make this decision without further assistance.  As you can no doubt appreciate the Union has many competing demands from members on its resources and I do not intend to allocate more of the Union's scare (sic) resources to this matter until you make a decision about its future course.  I therefore do not propose to answer any further correspondence from you or discuss this matter with you further."

18                  In a letter dated 11 June 1992, and bearing a date stamp as being received on 15 June 1992, Mr Horsman wrote to Commissioner Laing at "The Australian Industrial Commission".  The letter commenced:

"I am in receipt of correspondence from the AWU and in particular Mr Peter Malone.  This correspondence indicates that you are not prepared to arbitrate privately my wrongful dismissal from the Main Roads Dept, Pilbara, unless an undertaking is given by me that I waive my rights to a Judicial hearing if I require at a later date.

Later in the letter Mr Horsman said:

"Unfortunately, in my case I cannot constitute interstatedness to have my claim heard in a full hearing at the commission.  Therefore my only option is to have the matter privately arbitrated."

Later again he stated:

"I do not believe that the Commissioner has the rights to interfere or request waivers to my Jurisdiction of the Judicial system and I do not waiver (sic) that right."

19                  The letter concludes in this paragraph:

"This alone is a breach of the state Criminal Code and the matter will be investigated by the appropriate authorities.  I will not continue in this letter to point out various irregularities involving me and other parties surrounding all issues but will most definitely take up the issues when the appropriate time arises.  I respectfully request an expedited reply to all of my questions and requests within this correspondence"

20                  The letter indicates that copies were sent to the Federal Minister for Industrial Relations, to Mr Graeme Campbell, the then Federal member for Kalgoorlie, and also to what is said to be the "Council for Litigation".

21                  The next relevant evidence is a letter, again from Mr Horsman, bearing date 17 June 1992, and with a date stamp of 19 June 1992.  The letter is addressed to the Federal Industrial Relations Commission, President Madden.  The letter commences:

"I write to you with great concern concerning the actions of Commissioner Laing of the Australian Industrial Relations Commission of WA."

22                  Having referred to a request by Commissioner Laing that "Peter Malone from the AWU and myself should reconcile in the private room across the corridor", the letter continued:

"While we were doing this the door opened and Commissioner Laing came in and sat down opposite us.  He said to us that he was not prepared to arbitrate this issue because if he reinstated me then the MRD would take the issue to the Federal Court.  If he didn't reinstate me then he feared I would take the issue to the Federal Court…".

and later in the letter he said:

"Commissioner Laing through the AWU union has adamantly insisted that I sign a waiver of any rights of appeal or process to the Judicial system or he will not hear the action as listed.  I have written to Senator Peter Cook with my plight and I believe he has noted my concerns, however I believe that my correspondence to you will be better heard and investigated to my satisfaction.  I require that Commissioner Laing be withdrawn from his duties as arbitrator in this issue."

He asked later in the letter:

"…[is it] possible for me to appoint an independent advocate to attend to my issues."

The letter indicated that a copy was sent to the Industrial Relations Commission, Yvonne Henderson, State Government. 

23                  On 24 June 1992 Mr Horsman wrote to Mr Bruce Wilson at the AWU, referring to the union's letter of 9 June.  The letter noted "your advice."  Mr Horsman then continued:

"Taking into consideration the chain of events and the opinion provided from Slater and Gordon on my behalf to the AWU I would like to confirm with the union the following:

(1)   The action referred to lacks Jurisdiction in the Arbitration Industrial Relations Commission.

(2)   The union was not in the past or is now in a financial position to fund my attendance at the conference in the AIC in October 1991.  Also that the union is not in a financial position to fund my action in the Federal Court or instigate civil proceedings on my behalf.

(3)   My action of wrongful dismissal has been relisted for hearing at private arbitration, to be heard by Commissioner Laing on the 13^th July 1992 due to the reasons stated above.

(4)   You require me to sign certain guarantees that prohibit me from the Jurisdiction of the Judicial system if the matter is to be heard by Commissioner Laing of the AIRC.

(5)   If I do act, sign and return this guarantee by close of business on Monday 6^th July 1992, you will assume I do not wish to proceed at private arbitration and you will advise Commissioner Laing's associate and the Main Roads Dept accordingly.

(6)   The choice is mine, either I do or don't.

(7)   Please find enclosed the signed requested guarantee.

(8)   If I did not sign this guarantee by 6th July 1992 then the union is not prepared to represent me at the AIRC, hence the action will fail due to three contributory factors:

(a)   Jurisdiction,

(b)   The union's withdrawal,

(c)    Lack of funds to present the case on its merits in the Federal Court or otherwise."

The letter then continued for some pages, commencing with Mr Horsman's statement:

"I have contemplated and considered the union's approach and attitudes on various occasions towards my wrongful dismissal under the terms and conditions of my employment and the relevant award since before my dismissal until to date.  I am now in a position to make the following assessment"

Then follow some observations by Mr Horsman.  It is of note that in part of that assessment Mr Horsman said:

"I also request the union to consider their expertise in this area and if they consider that they are not competent enough to litigate this area then they appoint the appropriate litigant as, by signing the enclosed form of request, I have waived my rights to litigation in this area of the Judicial system, therefore I require it to be included at private arbitration."

24                  The document that Mr Horsman signed is in the following terms:

"I, BARRY HORSMAN, hereby confirm that I consent to my unfair dismissal claim against the Main Roads Department heard by Commissioner Laing of the Australian Industrial Relations Commission as a private arbitration and I further confirm that I will accept the outcome of the said private arbitration and will not seek to pursue this matter in any other tribunal or court."

25                  Handwritten on that document, which is signed by Mr Horsman and dated 23 June 1992, is the statement:

"REFER TO CORRESPONDENCE DATED 24/6/92, ATT BRUCE WILSON, AWU, SEC."

26                  The arbitration for the hearing before Commissioner Laing was commenced on 13 July.  Commissioner Laing gave a decision in writing, dated 6 November 1992.  It is important to note some parts of this decision.  The written reasons commence:

"This matter concerns a claim in relation to the alleged unfair termination of employment of a plant operator instructor with the Main Roads Department (MRD).  The Australian Workers' Union (AWU), on behalf of the employee Mr H, claims that the reinstatement of the employee is not appropriate in the particular circumstances of the case and instead seeks compensation.  The employer rejects the union's claim that the termination of the employee's services was unfair however agrees that reinstatement is not an option.  As a consequence the employer acknowledges that compensation may become a consideration if the Commission concludes that Mr H was unfairly dismissed.

The union's claim was first notified to the Commission under s 99 of the Industrial Relations Act (the Act) as an alleged industrial dispute on 9 October 1991.  The matter was the subject of a conciliation conference on 16 October 1991 which failed to resolve the matter.  At the conclusion of the conference Mr H indicated that he may pursue his claim through the Courts and the matter was adjourned.  On 13 July 1992 the matter was resumed at the request of the AWU which confirmed that Mr H wished to pursue his claims in the Commission."

and then, importantly, the decision recites:

"The parties agreed, on 13 July 1992, that the Commission should deal with the matter as "private" arbitration as they were unable to reach agreement.  This was understood to mean that the parties would not dispute whether the Commission had jurisdiction to deal with the claim and that they would accept a recommendation after presenting their respective cases.  The parties also accepted that the Commission should make the recommendation as part of the conciliation of the matter and recognised that it would not result in any formal award or order.  Although referred to as "private" arbitration, I am satisfied that the true nature of the proceedings is not private in the sense of being an arbitration conducted outside of the boundaries of the Act and is instead properly before the Commission under Conciliation powers, in particular under sections 100, 101, 102 and 111 of the Act."

27                  The Commissioner noted in his reasons:

"Despite their acceptance that the matter would result in a recommendation rather than an award or order, the parties provided substantial submissions and evidence in support of their respective positions.  These involved some 295 pages of transcript, extensive exhibits and the evidence of eight witnesses.  Since the conclusion of the hearings on 27 August 1992 and because of the volume of material, the transcript has been thoroughly reviewed and all evidence and exhibits evaluated.  I am satisfied that the material leads to the conclusions I have outlined in the following, however it is not necessary or even appropriate to detail each issue, claim or assertion."

28                  The Commissioner concluded:

"On balance I am not able to find that the employer acted harshly, unjustly or unfairly."

29                  The final paragraph of the written decision is in these terms:

"In light of the facts and events however I consider that the employer should have provided more substantial notice to the employee.  He had not unreasonable expectations of a long career with the employer and had moved with his family to the Pilbara in line with that expectation.  As well, although far from an age where it might be said that he will find it impossible to obtain other employment it nonetheless is an additional difficulty, particularly in light of his move to the Pilbara and the expenses and disruptions this involved.  I would strongly recommend therefore that the Department should provide an additional six weeks' pay in lieu of notice.

30                  It is important also to record what occurred on 13 July 1992 when the arbitration, which I prefer to call a consensual arbitration, was before Commissioner Laing.  After appearances were announced, Commissioner Laing said:

"Gentlemen, I have called this matter on this morning for a number of reasons.  The first, to permit the parties the opportunity to confirm on the record that the issue of jurisdiction of the commission to deal with the matter is not in issue.  And that all parties agree that the commission should hear and determine the application in final resolution of the claim for alleged unfair dismissal of Mr Horsman from his employment by the Main Roads Department."

I emphasise the reference to "all parties agree" and "in final resolution of the claim".

31                  Later that morning, after Mr Booth, who appeared on behalf of the AWU, had said:

"We will abide by the recommendations that may come out of - that will - that certainly they will come out of those proceedings -"

the Commissioner responded:

"Yes.  All right.  I think it is probably appropriate that I confirm how I see the matter is proceeding.  The parties are not going to raise the issue of jurisdiction.  And, again, to be content to have the matters dealt with pursuant to the conciliation provision of the Act, the Commission has agreed therefore to, indeed, a private arbitration of these matters and, as a consequence of that, private arbitration will make a decision - a decision which will determine to the commission's satisfaction, whether the claim is or is not successful.

…

I do hear, quite clearly, the applicant's position that reinstatement is not sought and that compensation is sought in lieu thereof.  That will, of course, also be one of the matters considered by the commission in the determination of it."

32                  Then in an important passage Commissioner Laing said:

"The outcome are, indeed, or will be, indeed, binding because the parties commit to it not because it is based on powers under the act in relation to orders.  The decision will result in recommendations, no more than that, to the parties. And therefore, the use or otherwise that the parties make of the outcome elsewhere or, indeed, if there is to be any use made of them, is in the hands of the parties and will be of no interest, whatsoever, to this commission.  The commission will determine the issue, as I said, in private arbitration.

After a proper hearing, of course, the decision will issue in writing and recommendations, if any, will also issue in writing.  The parties would be expected, because of the commitment that they have made, to comply with those recommendations.  I hope that puts beyond any doubt, Mr Booth, if there is any doubt either in your mind or your member's mind or, indeed, in your mind, Mr Taya, or in the minds of the parties you represent from Main Roads Department."

33                  On 17 November 1992, that is to say, after the written decision, dated 6 November 1992, had been given, Mr Horsman wrote to Commissioner Laing.  The letter at an early stage said:

"I am of the opinion that the decision handed down to the AWU has not been properly presented and many issues of contention have not been properly addressed as presented by the union on my behalf.  I signed a form of consent to the union to accept your decision but also only under certain terms and conditions.  Those terms and conditions have not been properly addressed and in some instances not addressed at all."

34                  After making reference to a number of particular passages in the transcript and to other matters, the letter concluded:

"I therefore once again strongly suggest the proceedings be declared as null & void and that new proceedings be an option to myself outside of the "private arbitration" and process dated 13th July to the 27-8-92.  I request your immediate attention to my assertions and await your reply with anticipation."

35                  By letter dated 3 December 1992 from the clerk to Commissioner Laing to Mr Horsman, Mr Horsman was informed that it was not appropriate for the Commission to enter into correspondence about any decision after it had been made.  The letter specifically said:

"In this matter the parties agreed and indeed you specifically requested the Commission to deal with the matter.  It could only be dealt with in conciliation proceedings and the Commission did so in accordance with s 110 of the Industrial Relations Act 1988."

Later the letter said:

"In light of the findings made by the Commission the recommendation for an additional six weeks pay in lieu of notice exceeds that required and may in the circumstances be seen to be generous."

The last paragraph of that letter stated:

"The Commissioner will not enter into any debate on the issue however there is nothing arising from the matters which prevents you from exercising your rights in any other jurisdiction.

36                  That last sentence may indeed have been misunderstood by Mr Horsman.  Clearly both parties were entitled to pursue the enforcement of whatever recommendations the Commissioner had made as part of the undertakings that they had each given to the Commission.  In any event, even if that was not the intention sought to be conveyed by that sentence, it cannot affect the legal consequence of the conduct of Mr Horsman in his dealings with the Main Roads Department before the Commission.

37                  In the light of the evidence before the learned primary judge, in my opinion it was well open to him to conclude that Mr Horsman generated an assumption in his previous employer that he would be bound by the Commissioner's recommendation if the proceedings before the Commissioner took place.  So much appears plain to me from his own correspondence.  Secondly, it seems to me well open to the primary judge to have concluded that the respondent acted on that assumption.

38                  It is true, as counsel for Mr Horsman has submitted, that there was no direct evidence of why the respondent participated in the arbitration before Commissioner Laing, and why it paid the further six weeks' pay in lieu of notice as recommended by Commissioner Laing.  However, on the totality of the evidence, it was well open to the primary judge to infer that the respondent acted as it did because of the assumption which had been generated by Mr Horsman.  In the light of those findings, it was also well open to the primary judge to conclude that it would be contrary to good conscience to permit the appellant to depart from the assumption which he had generated in the Department of Main Roads.

39                  In my opinion, no error has been shown in the reasons for judgment of the learned primary judge.  Indeed, in my respectful opinion, the primary judge was plainly right.  The appeal should be dismissed with costs.

WHITLAM J:

40                  I agree with Spender J.

CARR J:

41                  I agree with the other members of this Court that this appeal should be dismissed.  I propose to give some short reasons for my joining in the making of such an order.

42                  The factual circumstances of this matter are simple and straightforward.  On 21 May 1990 the appellant commenced employment with the respondent as a plant operator instructor.  On 7 October 1991 the respondent terminated the appellant’s employment.  The appellant considered that this termination was unlawful, being contrary to the terms of his contract of employment and contrary to the relevant award.  The appellant was a member of the Australian Workers Union.  He sought that union’s assistance in redressing the wrongs which he perceived to have been done to him by the termination of his employment.  The union agreed to act on his behalf.  On 9 October 1991 the union lodged a notification of dispute with the Industrial Relations Commission under s 99 of the Industrial Relations Act 1988 (Cth). 

43                  On 16 October 1991 the Commission convened a conciliation conference which was unsuccessful.  The matter was adjourned on the basis that the appellant might pursue his claim through the courts.  Apparently he was unsuccessful in obtaining legal aid.  In any event by May 1992 the appellant had re-enlisted the assistance of the Australian Workers Union to reactivate proceedings in the Commission.

44                  Commissioner Laing made it clear to the union and to the respondent that he would be prepared to conduct an arbitration but only on the basis that each party would abide by any recommendations he might make.  On 23 June 1992 the appellant signed a document confirming to the union his consent to his unfair dismissal claim against the respondent being heard by Commissioner Laing as a private arbitration.  In that document he expressly confirmed that he would accept the outcome of that arbitration and would not seek to pursue the matter in any other tribunal or court.

45                  On 13 July 1992 the union and the respondent’s representative each confirmed such a commitment on behalf of the appellant and the respondent respectively, i.e, that they would comply with any recommendations which Commissioner Laing might make.  The arbitration hearing proceeded before Commissioner Laing.  There were some 295 pages of transcript, extensive exhibits, and evidence was taken from eight witnesses. 

46                  It is quite clear, in my view, from the correspondence between the appellant and the Australian Workers Union that the union was acting at all times for and on behalf of the appellant; that is, as his agent.  I refer to the correspondence between the appellant and the union and also to the sworn evidence given by the appellant before the learned primary judge (see for example p 176 of the transcript reproduced in the Appeal Book at p 24).

47                  On 6 November 1992 Commissioner Laing gave his decision.  He recommended that the appellant be paid a further six weeks salary.  After Commissioner Laing made his recommendation, the appellant expressly requested the respondent to make the payment to him and later he received it.

48                  The appellant has now sued the respondent in this Court seeking the imposition of a penalty for breach of the award, payment of monies due to him under his contract of employment, a declaration that his dismissal was null and void, that he be reinstated and that he be paid damages for breach of contract together with interest and costs.

49                  The question is whether the primary judge was right in holding that the appellant is estopped from bringing these proceedings. 

50                  In the Commonwealth v Verwayen (1990) 170 CLR 394 at 413 Mason CJ said this:

“… there is but one doctrine of estoppel, which provides that a court of common law or equity may do what is required, but not more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness.  A central element of that doctrine is that there must be a proportionality between the remedy and the detriment which is its purpose to avoid.”

51                  The appellant says that he was not a party to the proceedings before Commissioner Laing.  I reject that contention.  It is quite clear that in those proceedings the union was acting for and on behalf of the appellant.  Then it was said on behalf of the appellant that there was insufficient evidence to show that the respondent relied on the representation made by the union. 

52                  In my view, there was ample evidence from which the primary judge was entitled to infer, as his Honour did at paragraph 42 of his reasons, that the respondent gave his undertaking in exchange for the union’s undertaking and that, on request being made by the appellant, the respondent paid the extra amount equal to six weeks salary.  The presiding judge has referred to much of that evidence in the reasons which he has just given.

53                  In my view, the sequence of the exchange of mutual undertakings and the respondent’s subsequent participation in the arbitration proceedings and his payment to the appellant of the recommended amount equal to six weeks salary constitutes a fair basis for his Honour’s inference.  I think also that the only reasonable inference is that the respondent participated in the arbitration proceedings before Commissioner Laing in reliance upon the undertaking given by the union on the appellant’s behalf.

54                  The appellant argued that the undertaking did not extend to his claims in contract.  It is quite clear from his correspondence with the union that he well understood that all claims arising out of what he alleged to be a wrongful dismissal were to be decided in the arbitration proceedings.  The undertaking given on his behalf was in unqualified terms.

55                  The appellant submits that it would be out of proportion to estop him from bringing further proceedings.  I do not think that is so.  The whole purpose of the arbitration proceeding was to decide all the rights and wrongs of his dismissal on 7 October 1991.

56                  To adopt the words of Deane J in Verwayen at 444, I think that this is a clear case where it would be unconscientious to permit the appellant to renege upon the undertaking given on his behalf before Commissioner Laing embarked upon the arbitration proceedings. 

57                  Having regard to all of the circumstances of the case, including the reasonableness of the conduct of the respondent in acting upon the undertaking given on the appellant’s behalf, I think that the appellant should not be permitted to continue the proceedings which he has initiated in this Court.

58                  I do not think that there is any merit in the appeal and it should be dismissed with costs.

SPENDER J:

59                  The order of the court is the appeal is dismissed with costs.

Associate:

Dated:              23 December 1999