FEDERAL COURT OF AUSTRALIA

Scherbakova v Royal Melbourne Institute of Technology [2000] FCA 1566

PRACTICE AND PROCEDURE – motion to dismiss application pursuant to O 20 r 2 of the Federal Court Rules – application wholly misconceived – “Anshun” estoppel – whether Court has jurisdiction to determine claims brought by application.

Industrial Relations Act 1988 (Cth) s 170EA

Federal Court Rules O 20 r 2

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 applied

SVETA MARY SCHERBAKOVA v ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY, DAVID BEANLAND and MARGARET BENNETT

V398 OF 2000

WEINBERG J

18 OCTOBER & 2 NOVEMBER 2000

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  There be no order as to costs.

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

EX TEMPORE REASONS FOR JUDGMENT

1                     The applicant, Ms Sveta Scherbakova, was formerly employed on a five year fixed term contract as a lecturer in the school of nursing at the Royal Melbourne Institute of Technology (“RMIT”).  Her employment commenced in January 1991 and ended on 31 December 1995.  She was not thereafter offered further employment.  The circumstances which gave rise to her departure have left her with a deep sense of grievance.

2                     The present application is not her first foray into the courts arising out of these matters.  Previously she brought a proceeding in the Industrial Relations Court.  She claimed that her employment had been unlawfully terminated and she sought relief under s 170EA of the Industrial Relations Act 1988 (Cth) (“the Act”).  That application was dismissed by Marshall J, in decision No: 534/96 (12 November 1996).  His Honour affirmed an earlier decision of a judicial registrar of the Industrial Relations Court to the effect that the applicant was excluded from the operation of Div 3 of Pt VIA of the Act.  That was because her contract of employment had not been terminated “at the initiative of the employer: but had, rather, simply come to an end by the effluxion of time”. 

3                     Marshall J also dealt with an alternative argument advanced by the applicant to the effect that she had some sort of contractual right, or expectation that her employment would continue.  That argument was based upon an agreement between the applicant’s union, the National Tertiary Education Industry Union (“NTEIU”) and the RMIT, which provided that tenure should “normally” be offered “following a five year contract”.  That argument was rejected by his Honour, who observed that what might “normally” apply is a different matter to what an employer is obliged to do by an award or industrial agreement.

4                     The applicant claims in the current proceeding before me that she has subsequently come into possession of further evidence which suggests that her employment had indeed been terminated at the initiative of the RMIT.  That further evidence is said to consist of documents which supposedly demonstrate that the RMIT had the financial wherewithal to allow the applicant to continue her employment, although she had apparently been told that she could not be kept on for budgetary reasons.

5                     The applicant has also brought a proceeding in the Victorian Civil and Administrative Tribunal, alleging various forms of discrimination and other unlawful conduct on the part of the RMIT and, arguably, its senior management.  In that proceeding the applicant sought relief under the Equal Opportunity Act 1995 (Vic).  She claims before me to be aggrieved by her treatment by the Victorian Civil and Administrative Tribunal.  She seeks to have this Court review the conduct of that body, and also its decision to dismiss her claim.

6                     The respondents have moved, pursuant to O 20 r 2 of the Federal Court Rules, to have the present application stayed or dismissed.  They advance three contentions in support of this motion:

(a)               In so far as the applicant's claim is based upon her either having had her employment unlawfully terminated at the initiative of the employer, or upon a claim of breach of an award condition applicable to her, both these claims were dealt with by Marshall J in the proceeding in the Industrial Relations Court.  There is now an issue estoppel or a res judicata in relation to these matters.  Alternatively, there is what is known colloquially as “an Anshun estoppel” in relation to these claims.  (See generally Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.)

(b)               In so far as the applicant's claims are based upon a supposed breach of contract or, indeed, a claim for trespass and damage to goods (which is also somewhat vaguely articulated), the only jurisdiction which this Court would have to entertain such claims would be its accrued jurisdiction.  Given that there is no viable primary claim to which these common law claims can properly attach, there is no basis for this Court to entertain these matters.

(c)               This Court has no jurisdiction to review the decision of the Victorian Civil and Administrative Tribunal, a state administrative body dealing relevantly with the operation of State law.  There is a separate mechanism for review of that Tribunal’s decisions, and it is to the Supreme Court of Victoria, not to this Court - see generally s 148 of the Victorian Civil and Administrative Tribunal Act 1998.

7                     The applicant, who was not represented before me, and who is plainly labouring under considerable disadvantage in that regard, maintained that the application which she has now brings differs significantly from the proceedings which she previously brought in the Industrial Relations Court.  She relies upon the further evidence which has now come into her possession as sufficiently distinguishing the claim she now makes from that which she previously made. She maintains that she has been subject to discrimination and other unlawful treatment. She submits that this Court should not deprive her of her right to ventilate her grievances.

8                     In my opinion, the applicant's claims are misconceived.  She cannot be permitted to re-litigate the very issues which were determined by Marshall J simply by seeking to add what is, in effect, a new gloss upon the arguments rejected by his Honour. It has been determined by Marshall J that the applicant's contract of employment was not terminated at the initiative of the RMIT.  It was a fixed term contract which simply ended as a result of the effluxion of time. Likewise, Marshall J considered and rejected the argument which the applicant now seeks to advance in relation to the alleged breach of award. The applicant’s only recourse, if dissatisfied with the reasoning of Marshall J, was to appeal against his Honour’s decision.  This Court will not now, four years later, revisit those issues.

9                     There is no basis upon which this Court ought to deal with ordinary common law claims for damages for breach of contract, or damages for the tort of trespass to goods, at least where those claims do not lie within its accrued jurisdiction. 

10                  The attempt to review the operations of the Victorian Civil and Administrative Tribunal is wholly misconceived, as the applicant frankly conceded when pressed upon this matter. 

11                  The respondents’ motion must succeed. The application will be dismissed. In the circumstances there will be no order as to costs.

Associate:

Dated:              18 October 2000 &

                        2 November 2000