FEDERAL COURT OF AUSTRALIA

Miller v University of New South Wales [2002] FCA 882

PRACTICE – stay of proceedings - issue estoppel – res judicata – abuse of process – whether applicant who has litigated a matter to conclusion in the Australian Industrial Relations Commission is able to litigate the same issues in the Federal Court

INDUSTRIAL LAW – Termination of employment – Australian Industrial Relations Commission – Jurisdiction – Whether applicant estopped by decision of the Australian Industrial Relations Commission that dismissal not harsh, unjust or unreasonable in subsequent proceedings in the Federal Court – whether decision by the Australian Industrial Relations Commission capable of giving rise to res judicata

INDUSTRIAL LAW – Termination of employment – Workplace Relations Act 1996 (Cth) s 170HB – whether s 170HB prevents applicant from making a claim under common law where decision previously made by Australian Industrial Relations Commission - whether s 170HB prevents applicant from making claims for breach of a certified agreement where decision previously made by Australian Industrial Relations Commission

Workplace Relations Act 1996 (Cth) ss 170CE, 170CF, 170CFA, 170CG, 170CH, 170CI, 170HA, 170HB, 178, 179, 413A,

Federal Court of Australia Act 1976 (Cth) s 21

Miller v University of NSW 7 March 2000 (Print S3518) referred to

Miller v Australian Industrial Relations Commission [2001] FCA 486; 108 FCR 192 referred to

Amann Aviation Pty Limited v Commonwealth 22 FCR 527 referred to

Johnson v Unisys Ltd [2001] UKHL 13; [2001] 2 All ER 801 referred to

Dey v Victorian Railways Commissioners (1949) 78 CLR 62 referred to

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 referred to

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 cited

Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 referred to

Blair v Curran (1939) 62 CLR 464 cited

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 cited

Port of Melbourne Authority v Anshun Proprietary Ltd (1981) 147 CLR 589 referred to

Beckford Nominees Pty Ltd v Shell Co of Australia Ltd (1986) 73 ALR 373 distinguished

Kidd v Savage River Mines (1984) 6 FCR 398 distinguished

Mills v Cooper [1967] 2 QB 459 cited

Queensland v The Commonwealth (1977) 139 CLR 585 cited

Rogers v The Queen (1994) 181 CLR 251 cited

Shergold v Tanner [2002] HCA 19 referred to

Hatchett v Bowater Tutt Industries Pty Limited (1991) 39 IR 24 distinguished

Green v Hampshire County Council [1979] ICR 861 cited

The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 cited

Australian Transport Officers Federation v State Public Service Federation (1981) 34 ALR 406 cited

Blagojevch v Australian Industrial Relations Commission (2000) 172 ALR 611 followed

Walton v Gardiner (1992) 177 CLR 378 cited

Jago v The District Court of New South Wales (1989) 168 CLR 23 referred to

CSR Limited v Cigna Insurance Australia Limited (1997) 189CLR 345 referred to

Ross T Smyth & Co Ltd v T D Bailey, Son & Co [1940] 3 All ER 60 referred to

Banning v Wright (Inspector of Taxes) [1972] 2 All ER 987 referred to

McGregor McGregor on Damages 16^th ed. 1997

Keith Mason QC: “Contract and Tort: Looking Across the Boundary from the Side of Contract” (1987) 61 ALJ 228

Spencer Bower, Turner and Handley: The Doctrine of Res Judicata 3^rd Ed 1996

DAVID MILLER v UNIVERSITY OF NEW SOUTH WALES

N 907 OF 2000

BRANSON J

16 JULY 2002

SYDNEY

THE COURT ORDERS THAT this proceeding be permanently stayed.

REASONS FOR JUDGMENT

INTRODUCTION

1                     The respondent (“the University”) has moved pursuant to an amended notice of motion dated 10 April 2002 for an order under O 20 r 2 of the Federal Court Rules that this proceeding be permanently stayed and, or alternatively, that paragraph six of the amended application be dismissed on the ground that it discloses no reasonable cause of action. 

2                     The applicant (“Dr Miller”) is a former employee of the University.  He is aggrieved by the circumstances in which his employment came to be terminated.  By this proceeding Dr Miller has sought certain relief under the Workplace Relations Act 1996 (Cth) (“the Act”) consequent upon an alleged beach by the University of the University of New South Wales (Academic Staff) Enterprise Agreement 1997‑1998 (“the certified agreement”).  He has further, by paragraph six of his amended application, sought relief at common law consequent upon an alleged breach by the University of his contract of employment.  Before Dr Miller commenced this proceeding he had made and prosecuted an application to the Australian Industrial Relations Commission (“AIRC”) for relief in respect of the termination of his employment by the University.

3                     The University contends that in the circumstances s 170HB(4) of the Act disentitles Dr Miller from bringing this proceeding.  The University further contends that the issues and matters upon which Dr Miller relies in this proceeding have been determined by the AIRC with the consequence that they have become res judicata, an issue estoppel concerning them has arisen or the proceeding is an abuse of the process of this Court.

4                     For the reasons set out below I have concluded that this proceeding should be permanently stayed.

background facts

5                     The factual background to this application is not in dispute.  Dr Miller, a physicist, commenced employment with the University in 1977.  In 1990 he was promoted to the level of Associate Professor.

6                     In February and again in September 1997 Dr Miller was requested by the Head of the School of Physics to undertake the duties of First Year Laboratory Director (“FYLD”).  Dr Miller did not wish to undertake those duties.  A considerable number of exchanges both oral and written between Dr Miller, the Head of the School of Physics and other senior staff of the University followed.  Ultimately Dr Miller refused to undertake the duties of FYLD.

7                     By letter dated 13 March 1998 Professor John Niland, Vice‑Chancellor of the University, advised Dr Miller that his employment with the University was terminated “with effect from today’s date”.  The letter stated:

“Your refusal to obey your Head of School’s instruction is, in my view, a matter that goes to the essence of your employment contract with the University.

…

Notwithstanding the fact that the seriousness of your conduct entitles me to terminate your employment immediately, which is what I am doing, I am going to provide you with payment equal to 5 weeks’ pay.”

8                     On 16 March 1998 Dr Miller applied to the AIRC under s 170CE(1) of the Act for relief in respect of the termination of his employment.  He alleged that the termination was harsh, unjust or unreasonable and that it involved a contravention of s 170CK of the Act.  It appears that attempts by the AIRC to settle the matter by conciliation failed (see s 170CF(1) of the Act).  It further appears that Dr Miller elected to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable rather than to bring proceedings in the Federal Court for an order under s 170CR of the Act in respect of the alleged contravention of s 170CK of the Act (see s 170CFA of the Act).

9                     On 29 October 1999 Senior Deputy President Harrison published her decision on the arbitration to determine whether the termination of Dr Miller’s employment was harsh, unjust or unreasonable.  Her Honour determined that it was not.

10                  Dr Miller sought leave from a Full Bench of the AIRC to appeal against the decision of Senior Deputy President Harrison.  The application for leave to appeal was heard on 7 February 2000.

11                  The published decision of the Full Bench dated 7 March 2000 (Print S3518) records that:

“The Applicant [ie Dr Miller] submitted that the Senior Deputy President made legal errors and acted on wrong principles in reaching her decision.  Although it was said that arbitration under s.170CG of the Act normally involves an exercise of discretion, in the particular circumstances of the present case, it was submitted that the arbitration could not be properly described as an exercise of discretion.  This is because the termination of employment was without notice and the EBA [ie the certified agreement] provides for such termination only where an academic is found to have engaged in conduct of a kind envisaged in s.170CM(1)(c) of the Act, namely serious misconduct. Subsection 170CM(7) refers to regulations which identify particular conduct falling within the reference to ‘serious misconduct’ in paragraph (1)(c) and regulation 30CA(2) gives the following example of conduct that is serious misconduct:

‘(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.’

It was said that the determination of whether there was a valid reason for dismissal under s.170CG(3)(a) involved consideration of whether the direction given regarding the job of FYLD was lawful. This was a non-discretionary element in the decision-making process. Further, the University terminated the employment for an alleged breach of the common law or the contract of employment and whether that is correct or not should be determined according to the legal principles of the common law, not as an exercise of discretion. …”

12                  The Full Bench concluded that the finding of the Senior Deputy President that the elements necessary to permit summary dismissal for serious misconduct had been made out in the case before her was reasonably open to her and was appropriate.  Having considered the other grounds of appeal and the submissions relied upon by Dr Miller in seeking leave to appeal, it refused leave to appeal.

13                  Dr Miller applied to the High Court of Australia for writs of certiorari and mandamus for the purpose of setting aside the decision of the Full Bench of the AIRC and requiring the AIRC to hear and determine the application for leave to appeal against the decision of the Senior Deputy President according to law.  The application was remitted to the Full Court of this Court for hearing and determination.

14                  Additionally, on 22 August 2000 Dr Miller commenced this proceeding claiming the following relief:

“1        A declaration under s 413A of the Workplace Relations Act 1996 (Cth) (“the Act”) that the term “serious misconduct” in cl 14 of the University of New South Wales (Academic Staff) Enterprise Agreement 1997‑1998 (“the certified agreement”) is exclusively defined in cl 5(d) of the Universities and Post Compulsory Academic Conditions Award 1995.

2                     The imposition under s 178 of the Act of the maximum penalty for a breach of clauses 14.0(a), 14.0(g) and 14.0(h) of the certified agreement by the respondent in terminating the employment of the applicant, half the penalty to be paid to the applicant and half to be paid to the Consolidated Revenue Fund.

3                     A declaration under s 413A of the Act that the respondent breached cl 14.0(d) of the certified agreement when the respondent summarily dismissed the applicant on 13 March 1998.

4                     An order under s 179 of the Act for payment by the respondent to the applicant of $41,020 made up as follows:

(i)        salary for six months due the applicant from 13 March

                       1998 under cl 14.0(d) of the certified agreement                $38,397

(ii)       two weeks recreation leave accrued during the six

            months                                                                                                 $ 2,954

                                                                                                         $41,351

(iii)      17% employer superannuation contribution on $41,351      $ 7,030

                                                                                                         $48,381

(iv)      less ex gratia payment                                                          $ 7,361

                                                                                                         $41,020

plus interest on $41,020 from 13 March 1998 under s 179A of the Act.

5                     Any other such order as to the Court seems fit.”

15                  On 4 May 2001, the Full Court of this Court gave judgment in Miller v Australian Industrial Relations Commission [2001] FCA 486; 108 FCR 192.  It made the orders sought by Dr Miller.  The reasons for judgment of the Court contain the following observations:

“In the present case, s 170CG(3) required the Senior Deputy President not only to determine (generally) whether the termination was “harsh, unjust or unreasonable”, but also, in that connection, to determine (specifically) whether there existed a valid reason for the termination related to the applicant’s conduct (see s 170CG(3)(a)).  In our view, this legislative scheme does not provide the considerable latitude (to borrow the language at 1354 (19) of Coal & Allied, above) which is available where the considerations relevant to the exercise of a statutory discretion are confined only by the subject matter and object of the legislation.

Further, as was held in Coal & Allied at 1354 [21], even if the discretion is a narrow one, it could, we think, have been challenged before the Full Bench by showing some error in the Senior Deputy President’s decision-making process, that is to say, by demonstrating that she has acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistaken the facts, or failed to take into account a material consideration.

In our opinion, when the reasons of the Full Bench are read as a whole, it appears that the Full Bench proceeded upon the basis that the question of leave, and if granted, the questions in the appeal itself, were to be addressed by a very broad approach to the evidence, and in particular by inquiring whether there was evidence before the Senior Deputy President from which a conclusion that, in assigning FYLD duties, the second respondent had acted in a reasonable way, was open to her.  In approaching its task in such a generalised fashion, the Full Bench, with respect, lost sight, we think, of three material considerations that it was bound to take into account:  (1) the “discretion” conferred upon the Senior Deputy President was, in truth, a narrow one (of the secondary kind previously described);  (2) although there was here, technically, a “discretion”, it could still be challenged for error upon the House principles, as was held in Coal & Allied at 1354 [21];  and (3) the specific requirements of s 170CG(3)(a) in the context of the particular provisions of cl 2 of the employment contract.”

16                  Dr Miller’s application for leave to appeal against the decision of the Senior Deputy President came before the Full Bench of the AIRC for further consideration on 23 May 2001 and on a number of days thereafter.  It appears that the Full Bench decided to hear the application for leave to appeal and the proposed appeal together.  Dr Miller was represented before the Full Commission by counsel including senior counsel.  He applied for and was granted leave to amend the grounds of appeal and to adduce further evidence.  The additional evidence adduced by Dr Miller related mainly to the certified agreement and, in particular, to the provisions relating to serious misconduct and the Position Classification Standard (“PCS”) which forms a schedule to the certified agreement.  The University also adduced further evidence on the same topics.

17                  On 11 October 2001 the Full Bench published its decision (PR910187).  It identified the main issues for its consideration as follows:

“(a)     What is the approach to be adopted on appeal in the present matter;

(b)       Was there a valid reason for the termination having regard to:

(i)                 whether the direction to assume the duties of First Year Laboratory Director was lawful and reasonable; and

(ii)               whether the refusal to assume the duties constituted ‘serious misconduct’;

(c)                Was the termination of employment harsh, unjust or unreasonable?”

The Full Bench proceeded on the basis that it should consider all of the evidence and material before the Commission and arrive at its own conclusions as to the correct decision on the s 170CE application.

18                  On the issue of whether there was a valid reason for the termination of Dr Miller’s employment the Full Bench of the AIRC concluded at [49]:

“In our view the Senior Deputy President correctly found on the evidence that the duties of FYLD assigned to the Applicant were consistent with his position as an Associate Professor.  Such a finding was appropriate having regard to the terms of the contract and the duties of an Associate Professor as set out in the PCS.  In this regard we note that the proper focus for the consideration of the duties of FYLD is not the previously performed functions or the past occupants of the position but the functions as envisaged for the position in the future.  This was the position that the Applicant was directed to accept by the University.  Nothing has been put by way of evidence or submission in the appeal proceedings which warrants a conclusion other than that the direction to the Applicant to assume the duties of FYLD was lawful.

At [54] the Full Bench concluded “that the assignment of the FYLD position to the Applicant was a reasonable direction”.

19                  The Full Bench then gave consideration to whether Dr Miller’s refusal to perform the duties of FYLD constituted serious misconduct either at common law or under the Universities and Post Compulsory Academic Conditions Award 1995 (“the award”).  After giving consideration to authorities on the issue of what may constitute serious misconduct at common law, the Full Bench concluded at [68] that Dr Miller’s conduct amounted to serious misconduct at common law and under the award, as it constituted a serious breach of contract or evinced an intention no longer to be bound by the contract.  The Full Bench further concluded that the University had a valid reason for terminating Dr Miller’s employment within the meaning of s 170CG(3)(a) of the Act and that the termination was not harsh, unjust or unreasonable.  The Full Bench granted leave to appeal from the decision of the Senior Deputy President but dismissed the appeal.

20                  On 12 March 2002 Dr Miller filed an amended application in this proceeding.  By his amended application Dr Miller makes the following claims:

            “Under the Workplace Relations Act 1996:

1.         A declaration under s 413A of the Workplace Relations Act 1996 (Cth) (“the Act”) that the term “serious misconduct” as it appears in cl.14 of the University of New South Wales (Academic Staff) Enterprise Agreement 1997‑1998 (“the certified agreement”) is exclusively defined in cl.5(d) of the Universities and Post Compulsory Academic Conditions Award 1995.

2.                  A declaration under s 413A of the Act that the respondent breached sub clauses 14.0(d), (g) and (h) of the certified agreement by summarily terminating the employment of the applicant on 13 March 1998.

3.                  The imposition under s178 of the Act of penalties with respect to the breaches of sub clauses 14.0(d), 14.0(g) and 14.0(h) of the certified agreement, each such penalty to be paid to the applicant pursuant to s356(b) of the Act.

4.                  An order that the respondent pay to the applicant all monies owing pursuant to the certified agreement from 13 March 1998 to the date of judgment.

5.                  In the alternative to (4) above an order under s179 of the Act for payment of monies owed to the applicant by the respondent by way of payment in lieu of notice under clause 14 pursuant to clause 14.0(d) the certified agreement calculated as follows:

            Payment of twelve months salary in lieu of notice              $76,794

            4 weeks recreation leave accrued during the 12 months      $ 5,908

            17% employer superannuation contribution on $82,702     $14,060

                                                                                                         $96,762

            less ex gratia payment                                                          $ 7,361

            TOTAL:                                                                               $89,401

Under the Contract of Employment Between the Parties

6.                  An order that the respondent pay the applicant damages for breach of the contract of employment calculated as follows:

twelve months salary in lieu of notice and associated benefits

as set out above:                                                                              $89,401

Amount for loss of opportunity of continued employment for

Period of 10 years:

Weekly remuneration $1719.25

The 3% Multiplier for 10 years is 451.8

$1719.25 x 451.8                                                                           $776,757.15

General Damages                                                                                      $100,000.00

TOTAL:                                                                                                    $966,158.15”

Counsel for Dr Miller has indicated that the claim made by paragraph 4 of the amended application will not be pressed.

certified agreement

21                  Clause 14.0 of the certified agreement provides as follows:

“14.0   TERMINATION OF EMPLOYMENT AND DISCIPLINARY ACTION

This clause replaces in its entirety clauses 9, 11, 12, 13, 14 and 15 of the Universities and Post Compulsory Academic Conditions Award 1995.

(a)        All decisions to discipline or terminate the employment of an academic must be in accordance with this clause.

(b)               Except as specifically provided herein to the contrary, the terms of this Agreement shall cover exhaustively the subject matter concerned, and are to the exclusion of:

(i)                 State and Territory law in respect of any matter subject to this Agreement; and

(ii)               any law of the Commonwealth or an internal Territory of the Commonwealth, in respect of which the Australian Industrial Relations Commission has power to make an award which is not consistent with that law by reason of section 121 of the Workplace Relations Act 1996 in respect of any matter subject to this Agreement to the extent that this Agreement is not consistent with that law.

Provided that the provisions of this Agreement shall be subject to and shall not affect the operation of:

(A)              any law empowering a State or Commonwealth industrial tribunal to order re‑instatement of or compensation to a staff member or to otherwise deal with the dismissal of that staff member;

(B)              any other law empowering any court or tribunal external to an employer which has jurisdiction to deal with any causes of action or claims arising from actions taken by the University pursuant to this Agreement.

(c)               Any procedural requirements imposed by laws referred to in subclause (b) above are entirely displaced and extinguished by force of this Agreement.

(d)               The University must not terminate the employment of an academic unless the academic has been given notice and/or compensation as required by 170CM of the Workplace Relations Act 1966 provided that:

(i)                 the University may terminate without notice the employment of an academic found to have engaged in conduct of a kind envisaged in section 170CM(1)(c) of the Workplace Relations Act 1966 such that it would be unreasonable to require the University to continue employment during a period of notice;

(ii)               greater notice and/or compensation specified in the academic’s contract of employment or in the terms of the 1991 Academic Award Restructuring Agreement or in this Agreement shall prevail over section 170CM of the Workplace Relations Act 1966.

(e)               This Agreement is to be read in conjunction with Division 3 of Part VIA of the Workplace Relations Act 1996 provided that an academic shall be entitled to the benefit of:

(i)                 any provision in this Agreement which is more favourable to the academic than any corresponding provision in the Workplace Relations Act 1996;

(ii)               any procedural step required by the Agreement in addition to the required procedural steps of the Workplace Relations Act 1996.

(f)                Disciplinary action should be used as a last resort.  An academic supervisor must make every effort to resolve instances of possible misconduct or unsatisfactory performance through guidance, counseling [sic] and appropriate academic staff development, or appropriate work allocation before a possible report to the Vice‑Chancellor.  At the request of the academic a supervisor must consult with colleagues in the academic unit before making a formal report to the Vice‑Chancellor under subclause 14.1(b).

(g)               Disciplinary action may only be taken by the Vice‑Chancellor and only in accordance with this Agreement.

(h)               In cases involving misconduct, serious misconduct and unsatisfactory performance, disciplinary action shall be as defined in clause 3 of this Agreement.  Provided that in the case of misconduct disciplinary action will be limited to (i) to (iv) of that clause.”

STATUtory provisions

22                  Section 170CE(1) of the Act provides:

“(1)     Subject to subsection (5), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:

(a)         on the ground that the termination was harsh, unjust or unreasonable; or

(b)         on the ground of an alleged contravention of section 170CK, 170CL, 170CM or 170CN; or

(c)          on any combination of grounds in paragraph (b) or on a ground or grounds in paragraph (b) and the ground in paragraph (a).”

When an application is lodged with the AIRC under s 170CE(1) the AIRC must attempt to settle the matter to which the application relates and, if unsuccessful, issue a certificate containing specified information including information as to whether conciliation is, or is likely to be, unsuccessful (s 170CF).

23                  Section 170CFA provides for an applicant, where settlement has not been achieved, to make an election between possible future options.  The section is relevantly in the following terms:

“(1)     If the certificate given by the Commission under subsection 170CF(2) identifies only the ground referred to in paragraph 170CE(1)(a) as a ground where conciliation is, or is likely to be, unsuccessful, the applicant must elect either to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable or not to proceed.

…

(3)        If the certificate given by the Commission under subsection 170CF(2) identifies:

(a)       the ground referred to in paragraph 170CE (1)(a); and

(b)       a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CL and 170CN;

as grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect to do either or neither of the following:

(c)        to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable;

(d)       to begin proceedings in the Court for an order under section 170CR in respect of the alleged contravention, or of any one or more of the alleged contraventions.”

24                  Section 170CG of the Act is concerned with the arbitration.  It relevantly provides:

“(1)     If:

(a)               the Commission has issued a certificate under subsection 170CF(2) regarding conciliation of an application relating to a termination of employment; and

(b)               the applicant has made an election under subsection 170CFA(1), (2), (3) or (5) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable;

the Commission may so proceed to arbitrate the matter.

…

(3)        In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

(a)               whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and

(b)               whether the employee was notified of that reason; and

(c)                whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and

(d)               if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination; and

(e)                any other matters that the Commission considers relevant.”

25                  If the AIRC determines that a termination was harsh, unjust or unreasonable it may, if it considers it appropriate, make an order requiring the employer to reinstate the employee (s 170CH(3)).  If the AIRC thinks that reinstatement is inappropriate, it may order the employer to pay the employee an amount in lieu of reinstatement (s 170CH(6)).  Subsections 170CH(7) and (8) provide as follows:

“(7)     Subject to subsection (8), in determining an amount for the purposes of an order under subsection (6), the Commission must have regard to all the circumstances of the case including:

(a)              the effect of the order on the viability of the employer's undertaking, establishment or service; and

(b)              the length of the employee's service with the employer; and

(c)              the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and

(d)              the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and

(e)              any other matter that the Commission considers relevant.

(8)       In fixing an amount under subsection (6) for an employee who was employed under award conditions immediately before the termination, the Commission must not fix an amount that exceeds the total of the following amounts:

(a)                the total amount of remuneration:

(i)                 received by the employee; or

(ii)               to which the employee was entitled;

(whichever is higher) for any period of employment with the employer during the period of 6 months immediately before the termination (other than any period of leave without full pay); and

(b)                if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

26                  Section 170CI provides:

“Subject to any right of appeal to a Full Bench of the Commission, an order made by the Commission under section 170CH is final and binding between the parties.”

27                  Section 170HA relevantly provides:

“Subject only to the operation of sections 170HB … the provisions of this Division are not intended to limit any rights that a person or trade union may have to appeal against termination of employment or to secure the making of awards or orders relating to termination of employment.”

28                  Section 170HB of the Act is concerned to prevent multiple proceedings being instituted in respect of a termination of employment alleged by the employee to be harsh, unjust or unreasonable or unlawful.  The section provides:

“(1)     An application must not be made under section 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground, if proceedings (the prior proceedings) for a remedy in respect of that termination have been commenced by or on behalf of that employee:

(a)               under another provision of this Act; or

(b)               under another law of the Commonwealth; or

(c)                under a law of a State or Territory;

alleging that the termination was:

(d)               harsh, unjust or unreasonable (however described); or

(e)                unlawful;

for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination.

(2)        Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceedings:

(a)               have been discontinued by the party who began the proceedings; or

(b)               have failed for want of jurisdiction.

(3)        For the avoidance of doubt, a proceeding under this Act or any other law of the Commonwealth or under a law of a State or Territory seeking compensation, or the imposition of a penalty, because an employer has failed, in relation to a termination of employment, to meet an obligation:

(a)               to give adequate notice of the termination; or

(b)               to provide a severance payment as a result of the termination; or

(c)                to provide any other entitlement payable as a result of the termination;

is taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on the termination.

(4)        If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before the application would, because of the operation of subsection (1), have prevented the application unless the application:

(a)               is discontinued by the applicant; or

(b)               fails for want of jurisdiction.”

contentions of the parties

29                  The University argued that the application in this proceeding, if it had been filed before Dr Miller’s application to the AIRC under s 170CE of the Act, would because of the operation of s 170HB(1) of the Act have prevented Dr Miller’s application to the AIRC.  The University contended that s 170HB(4) therefore operates to disentitle Dr Miller from taking this proceeding.

30                  Secondly, the University, at least formally, invoked the rule as to res judicata.  It contended that Dr Miller is no longer in a position to claim the relief identified in the amended application because this proceeding raises the same issues as were raised before the AIRC with the consequence that the causes of action upon which he relies have merged in the judgment of the Full Bench of the AIRC.

31                  Further, or in the alternative, the University contended that Dr Miller is estopped from re‑agitating in this Court the issues determined by the Full Bench of the AIRC.

32                  Finally, as to the proceeding as a whole, the University contended that this proceeding is an abuse of the process of the Court as it involves an attempt by Dr Miller to litigate again a case which the Full Bench of the AIRC disposed of in a manner adverse to him.

33                  As to paragraph six of the amended application (see [20] above), the University invited the Court to strike out the paragraph on the basis that it fails to disclose a reasonable cause of action.

34                  Dr Miller argued that the questions of s 170HB, res judicata and issue estoppel should have been dealt with, if at all, on the hearing in October 2000 of a motion by the University in this proceeding.  By that motion the University sought orders that the proceeding be stayed or stood out of the list until the proceeding remitted by the High Court to the Full Federal Court had been concluded and further, or in the alternative, that the proceeding be set aside.  In responding to that motion Dr Miller had sought to ventilate the issue of possible estoppel.  However, the University at that time submitted to the Court that:

“The respondent has not contended, and does not now contend that the findings of the Australian Industrial Relations Commission … in the section 170CE proceedings at first instance or on appeal, represent a form of estoppel in the present proceeding.”

The University had at that time also stated:

“The respondent has not contended and does not now contend that (subject to its submissions as to the construction of sections 413A and 178(5A) of the Act…), the applicant is statute barred from making the application herein.

…

The respondent seeks to postpone the exercise of the applicant of any right he may have to make his application herein, not to deprive him of that right.”

35                  Further on the current motion Dr Miller drew attention to the University’s “vigorous” opposition to his application to the AIRC to have the remitted application for leave to appeal and, if leave were granted, the appeal stood over until the completion of this proceeding.  On that occasion the University stated:

“We have come here on the appellant’s application and we say that there is no basis on which this Commission ought not hear and determine according to law his appeal from the decision of the Senior Deputy President.  Those proceedings were initiated and, indeed concluded, even at the appeal stage, prior to the institution of the Federal Court proceedings.  They should be resolved.  The Federal Court proceedings will take their own course.  The remedies available are not mutual.  The determination of one will not resolve the other.”

36                  Dr Miller argued that had it been earlier indicated that the University would rely on the findings of the AIRC as giving rise to an estoppel or res judicata he would have relied on the indication when seeking to persuade the AIRC to stand over the further consideration of his application for leave to appeal.  Dr Miller stated that it might also have prompted him to move the Court for an order that the University not take any steps to proceed with the AIRC proceeding until the Court proceeding had been finalised.

37                  Dr Miller contended that:

“The respondent’s conduct in relying upon s 170HB, issue estoppel and res judicata, in light of its earlier submissions to this Court and to the Commission, constitutes an abuse of process in the sense discussed in Walton v Gardiner (1992) 177 CLR 378 Rogers v R (1994) 181 CLR 251 and Jago v District Court (1989) 168 CLR 23.”

Dr Miller contended that the motion of the University should be dismissed for the above reasons alone.

38                  With respect to s 170HB(4) of the Act, Dr Miller argued that the proceeding is not a “prior proceeding” within the meaning of s 170HB(1), but rather is a proceeding of the kind referred to in s 170HB(3) which is to be taken to be a proceeding alleging that his termination was unlawful because of a failure to provide a benefit to which he was entitled on termination.

39                  As to paragraph 6 of his amended application, Dr Miller submitted that it is not a claim under the Act, another law of the Commonwealth or under a law of a State or Territory within the meaning of s 170HB, but rather a common law claim.

40                  On the issues of res judicata and issue estoppel, Dr Miller contended that the Act disclosed an intention that, save for the claims precluded by s 170HB, no estoppel will arise from proceedings under s 170CE.  He further argued that the administrative nature of the jurisdiction exercised by the AIRC, with the consequent inability of the AIRC to determine conclusively questions of law, prevented any decision of the AIRC giving rise to res judicata or an issue estoppel.  In the alternative, Dr Miller argued that the causes of action relied on in this proceeding are not those relied on before the AIRC with the consequence that the principle of res judicata has no application.  He also argued that the nature of the jurisdiction exercised under s 170CG(3) is such that no particular facts give rise to entitlement to relief.

41                  In respect of paragraph 6 of his amended application, Dr Miller placed reliance on Amann Aviation Pty Limited v Commonwealth 22 FCR 527 and Johnson v Unisys Ltd [2001] UKHL 13 (22 March 2001); [2001] 2 All ER 801 and the principle that the power to intervene summarily to prevent a party presenting its case for determination by a court should be exercised with caution (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129).

consideration

Damages for Breach of Contract

42                  I turn first to consider paragraph 6 of the amended application.  By that paragraph Dr Miller claims damages for breach of contract being the aggregate of twelve months’ salary and associated benefits in lieu of notice, the present value (as I understand it) of ten further years’ remuneration to compensate him for the loss of the opportunity of continued employment and $100,000 described as general damages.

43                  The University has submitted that:

“[s]uch damages are not available for breach of contract of employment – see Addis v Gramophone [1909] AC 488.  Nor does Dr Miller’s case fall within any of the exceptions to the Addis principle.”

This submission was not expanded upon with the result that I am unable to be certain of the “exceptions to the Addis principle” to which the University intended by its submission to refer. 

44                  There is no doubt that paragraph 6 is an ambitious claim.  It is presumably intended to allow counsel the latitude necessary to test the extent to which Addis v Gramophone remains good law.  No application was made, in the alternative, for any part of paragraph 6 to be struck out.  In view of the necessary caution to be applied in respect of a strike out motion and the lack of certainty as to the extent to which the common law allows recovery of damages in contract for non‑pecuniary losses (see, for example, McGregor McGregor on Damages 16^th ed. 1997 at [92]‑[106]; Keith Mason QC: “Contract and Tort: Looking Across the Boundary from the Side of Contract” (1987) 61 ALJ 228 esp at 236‑240) I do not consider it appropriate to strike out the whole of the paragraph on the ground that it discloses no reasonable cause of action.

Section 170HB

45                  Section 170HB is set out in [28] above.  The University placed reliance on s 170HB(4). 

46                  It is necessarily accepted by Dr Miller that he made an application of the kind referred to in s 170HB(1) in respect of the termination of his employment by the University.  That application was his application under s 170CE of the Act for relief on the ground that the termination was harsh, unjust or unreasonable.  It is not necessary for separate consideration to be given to the further ground initially relied upon, namely the alleged contravention of s 170CK of the Act.  Dr Miller’s application under s 170CE was not discontinued by him nor did it fail for want of jurisdiction.

47                  The issue is therefore whether by initiating this proceeding Dr Miller has taken proceedings for another remedy that, if it had been applied for before Dr Miller’s s 170CE application would, because of the operation of s 170HB(1), have prevented that application.  It would have prevented that application if it fitted the description of:

“… proceedings … for a remedy in respect of [the termination of Dr Miller’s employment]:

(a)       under another provision of [the] Act; or

(b)       under another law of the Commonwealth; or

(c)        under a law of a State or Territory;

alleging that the termination was:

(d)       harsh, unjust or unreasonable (however described); or

(e)        unlawful;

for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination.”

48                  This proceeding is a proceeding in respect of the termination of Dr Miller’s employment by the University.  The claims made by paragraphs 1, 2, 3 and 5 of the amended application are all claims made under provisions of the Act other than s 170CE.  Ms Howell, counsel for Dr Miller, submitted that a claim for a declaration is not a proceeding for a “remedy” within the meaning of s 170HB(4).  She argued that a “remedy” within the meaning of the subsection is a measure providing actual redress for wrongful termination and that a claim for merely declaratory relief falls outside the terms of the subsection.  The submission has, in my view, considerable force.  However, I have not found it necessary to reach a concluded view as to its correctness.

49                  All of the claims advanced by paragraphs 1, 2, 3 and 5 of the amended application are realistically to be seen as claims which, when read together, allege that the termination of Dr Miller’s employment was unlawful.  The critical issue is whether they allege that the termination was unlawful “for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination”.  Proceedings which allege that a termination was unlawful because of a failure to provide a benefit to which the employee was entitled on termination are not caught by s 170HB(4).

50                  Subsection 170HB(3) provides, for the “avoidance of doubt”, that a proceeding under the Act which seeks compensation or the imposition of a penalty “because the employer has failed, in relation to termination of employment, to meet an obligation:

(a)               to give adequate notice of the termination; or

(b)               to provide a severance payment as a result of the termination; or

(c)               to provide any other entitlement payable as a result of the termination …”

is to be taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on termination.

51                  As the claims made by paragraphs 1 and 2 of the amended application are intended, as I understand it, merely to provide support for the claims advanced by paragraphs 3 and 5, I turn first to consider the later paragraphs.  Dr Miller, by paragraph 3 of the amended application, to the extent that the paragraph places reliance on subclause 14.0(d) of the certified agreement, seeks the imposition of a penalty because the University failed, in relation to the termination of his employment, to meet an obligation imposed, as he alleges, by the subclause to give adequate notice of the termination.   To the extent that paragraph 3 claims the imposition of a penalty with respect to the alleged breach by the University of subclause 14.0(d) of the certified agreement, it is a proceeding under the Act for the imposition of a penalty because an employer has failed, in relation to a termination of employment, to meet an obligation to give adequate notice of the termination within the meaning of s 170HB(3) of the Act.  It is to be taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on the termination within the meaning of s 170HB(1) (see s 170HB(3)(a)).  Section 170HB(4) does not operate to disentitle Dr Miller from making this claim.

52                  To the extent that paragraph 3 of the amended application places reliance on subclauses 14.0(g) and (h), it is not, in my view, a claim that Dr Miller’s termination was unlawful because of a failure by the University to provide a benefit to which he was entitled on termination within the meaning of s 170HB(1).  Subclause 14.0(g) of the certified agreement is concerned to identify who may take disciplinary action and the process to be followed when disciplinary action is taken.  Subclause 14.0(h) is concerned with the nature of the disciplinary action which may be taken under the certified agreement.  To the extent that paragraph 3 of the amended application places reliance on subclauses 14.0(g) and (h) of the certified agreement, it seeks remedies in respect of the termination of Dr Miller’s employment for a reason other than a failure by the University to provide a benefit to which he was entitled on the termination.  Section 170HB(4) operates to disentitle Dr Miller from making these claims.

53                  Paragraph 5 of the amended application, which seeks an order for the payment of monies by way of payment in lieu of notice pursuant to subclause 14.0(d), seeks compensation because the University allegedly failed, in relation to the termination of Dr Miller’s employment, to meet an obligation to give adequate notice of the termination.  By reason of s 170HB(3)(a) it is to be taken to be a proceeding alleging that the termination of his employment was unlawful because of a failure to provide a benefit to which he was entitled on the termination.  Section 170HB(4) does not operate to disentitle Dr Miller from making this claim.

54                  The claims for declaration made by paragraphs 1 and 2 of the amended application are, as is mentioned above, made in support of the claims made by paragraphs 3 and 5.  To the extent that the claims for declarations are made on the basis that the termination of Dr Miller’s employment resulted in a failure by the University to meet an obligation to give adequate notice of the termination, they may, in my view, be characterised as claims “alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on the termination” within the meaning of s 170HB(3).

55                  The claim made by paragraph 6 of the amended application is not made under a provision of the Act nor under another law of the Commonwealth.  It was contended by the University that a claim at common law is a claim under a law of a State (presumably in this case the law of New South Wales) within the meaning of s 170HB(1) of the Act.  I reject that contention.  As the High Court pointed out in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563:

“There is but one common law in Australia which is declared by this Court as the final court of appeal.  In contrast to the position in the United States, the common law as it exists throughout the Australian States and Territories is not fragmented into different systems of jurisprudence, possessing different content and subject to different authoritative interpretations.”

The reference in s 170HB(1)(c) to “a law of a State or Territory” is to be understood, in my view, as a reference to the law made by, or under the authority of, the parliament of a State or Territory (cf Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 at [25]).  In my view, s 170HB(4) does not operate to disentitle Dr Miller from making the claim advanced by paragraph 6 of the amended application.

56                  I conclude that the only aspect of the amended application that s 170HB(4) disentitles Dr Miller from advancing is so much of the claim advanced by paragraph 3 of the amended application as depends upon alleged breaches of subclauses 14.0(g) and (h) of the certified agreement.

Res Judicata

57                  By its written submissions, the University contended that Dr Miller is barred by the doctrine of res judicata from advancing the claims made in this proceeding.  It was not entirely clear whether Mr Goot SC, who appeared with Mr Prince for the University, pressed this contention on the hearing of the application.

58                  It seems to me that the written submissions of the University tended to confuse the concepts of issue estoppel on the one hand and res judicata or cause of action estoppel on the other.  Confusion of these concepts is not uncommon.  It may in part arise from the different terminology used in Australia and England respectively.  This difference in terminology is illustrated in Spencer Bower, Turner and Handley: The Doctrine of Res Judicata 3^rd ed. 1996 (“Handley”) of which Handley JA of the Court of Appeal of New South Wales is the author.  Although his Honour has utilised English terminology in this English text, he has referred at 2 in footnote 7 to the Australian terminology utilised in Australia following the judgment of Dixon J in Blair v Curran (1939) 62 CLR 464.  Using Australian terminology, Part 1 of Handley, which is entitled “Res judicata estoppel”is concerned with issue estoppel and Part 2, which is entitled “Merger in judgment” is concerned with res judicata.

59                  In Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, where it seems similar confusion arose, Deane, Toohey and Gaudron JJ at 507‑508 observed:

“Although the defence in the second action uses the language of estoppel, it is apparent that what the appellant relies upon is res judicata.  The matter was so argued.  The point was made by Gibbs C.J., Mason and Aickin JJ. in Port of Melbourne Authority v. Anshun Pty. Ltd. [(1981) 147 CLR 589 at p.597]in this way:

            ‘The distinction between res judicata (in England called “cause of action estoppel”) and issue estoppel was expressed by Dixon J in Blair v Curran [at 532] in these terms:  “in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.”

            The distinction was restated by Fullagar J. in his dissenting judgment in Jackson v Goldsmith [(1950) 81 CLR 446 at 466].  His Honour expressed the rule as to res judicata by saying: “where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action.  This rule is not, to my mind, correctly classified under the heading of estoppel at all.  It is a broad rule of public policy based on the principles expressed in the maxims ‘interest reipublicae ut sit finis litium’ and ‘nemo debet bis vexari pro eadem causa’.”  His Honour went on to discuss issue estoppel, citing the comment of Dixon J. in Blair v. Curran [at 531]: “A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.”

            …

            The rule as to res judicatacomes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.’

The question in this appeal is whether the cause of action claimed by the respondent in the second proceeding has already passed into judgment so as to lose its independent existence.”

60                  Their Honours went on to note, but not to resolve, the imprecision in the words “cause of action”.  In Chamberlain v Deputy Commissioner of Taxation, as in this proceeding, it was not necessary to determine whether the words “cause of action” mean the facts which support a right to judgment, the right which has been infringed or the substance of an action as opposed to its form (see Port of Melbourne Authority v Anshun Proprietary Ltd (1981) 147 CLR 589 per Brennan J at 610).

61                  Before the AIRC Dr Miller sought the relief in respect of the termination of his employment provided for by s 170CE of the Act.  He was relevantly required to establish that the termination of his employment was harsh, unjust or unreasonable.  In determining whether the termination was harsh, unjust or unreasonable the AIRC was required to have regard to the matters identified in s 170CG(3) of the Act (see [22] above).

62                  Before this Court Dr Miller places no reliance on s 170CE or s 170CG(3) of the Act.  To achieve the relief which he claims he is not required to establish that the termination of his employment was harsh, unjust or unreasonable.  Before this Court Dr Miller relies upon s 413A of the Act so far as he seeks an interpretation of the certified agreement, possibly s 21 of the Federal Court of Australia Act 1976 (Cth) so far as he seeks other declaratory relief, s 178 of the Act so far as he seeks the imposition of penalties, s 179 of the Act so far as he seeks the recovery of the amount of payments to which he was allegedly entitled under the certified agreement and the common law so far as he seeks an award of damages.  Although some of the facts upon which he will rely to support his claims before this Court were also relied upon by him before the AIRC, in no sense is his cause of action in this Court the same as the cause of action upon which he relied before the AIRC.

63                  The rule as to res judicata, in my view, has no application in the present proceeding.

Issue Estoppel

64                  Ms Howell contended that s 170HA of the Act discloses an intention that, save for claims precluded by s 170HB, no estoppel can arise from a proceeding under s 170CE of the Act.  She placed reliance on Beckford Nominees Pty Ltd v Shell Co of Australia Ltd (1986) 73 ALR 373 (“Beckford v Shell”) at 378 and Kidd v Savage River Mines (1984) 6 FCR 398 at 409‑410.

65                  In Beckford v Shell Pincus J at 379 concluded that where legislation provided that the application of certain provisions could not be excluded by express agreement, it would be absurd to conclude that the legislature meant to allow the exclusion of the same provisions by estoppel.  In Kidd v Savage River Mines Gray J at 409‑410 expressed the view that it is a sound principle that statutory rights should not be defeated by an estoppel.  However, it is plain that his Honour was in that case concerned with an asserted estoppel in pais or equitable estoppel said to be based upon an election between two inconsistent rights.  His Honour was not concerned with issue estoppel.  Neither of these authorities, in my view, is of assistance in the circumstances of the present application.

66                  The doctrine of issue estoppel is properly regarded as a rule of public policy and not merely a rule of evidence (Mills v Cooper [1967] 2 QB 459 per Lord Diplock at 467; Queensland v The Commonwealth (1977) 139 CLR 585 per Aickin J at 614‑615; Rogers v The Queen (1994) 181 CLR 251 per Deane and Gaudron JJ at 274).  In my view, if the legislature had intended by s 170HA of the Act to displace the rule of public policy reflected in the doctrine of issue estoppel it would have done so in clearer terms (see Shergold v Tanner [2002] HCA 19 at [27]‑[28]).  Section 170HA has considerable scope for operation notwithstanding its failure to displace the doctrine of issue estoppel.  I reject the contention that s 170HA of the Act has the effect that no issue estoppel can arise from a proceeding under s 170CE of the Act.

67                  The complete paragraph from the judgment of Dixon J in Blair v Curran at 531‑532, which is cited in part in [59] above, is:

“A judicial determination directly involving an issue of fact of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.  The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared.  The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.”

68                  It was argued on behalf of Dr Miller that since the AIRC does not, and constitutionally cannot, exercise judicial power it cannot conclusively determine questions of law or questions of mixed fact and law.  Consequently, it was contended that the AIRC exercising the arbitral power vested in it by s 170CG of the Act did not have the power to determine whether or not the University breached the certified agreement, or breached the contract of employment between the University and Dr Miller so as to make a final determination on those issue.

69                  An authority which at first glance appears to provide support for the argument advanced on Dr Miller’s behalf is Hatchett v Bowater Tutt Industries Pty Limited (1991) 39 IR 24 (“Hatchett’s case”).  In that case the respondent sought to have a proceeding before the Court dismissed or stayed on the ground that the applicant was estopped by a decision of the AIRC from re‑litigating the subject matter of the proceeding, or alternatively on the ground that the proceeding was an abuse of process.  After noting at [28] that the jurisdiction of the AIRC was limited to the prevention and settlement of industrial disputes extending beyond the limits of any one State, von Doussa J held that the AIRC lacked jurisdiction to ascertain and declare the existing rights of the applicant.  At [29] his Honour said:

“Unfortunately before the Commissioner the consequences of the distinction between the power of arbitral decision in respect of the future, and the power of judicial determination of existing rights and obligations were not observed.  The relief sought … on behalf of the applicant related wholly to the ascertainment, declaration and enforcement of the applicant’s existing legal rights.  These were matters which required a judicial determination, an exercise of judicial power which the Commission lacked.”

von Doussa J concluded that no issue estoppel could arise by reason of the decision of the AIRC because the decision of the AIRC was not a decision made by a tribunal which had jurisdiction finally to decide such applications.

70                  It would be appropriate for me to follow the decision of von Doussa J in Hatchett’s case unless I were satisfied that it were wrong had his Honour’s decision been made with respect to the same legislative provisions as I am required to consider.  However his Honour’s decision was made well before the coming into operation of the Act and, in particular, the coming into operation of Subdivision B of Division 3 of Part VIA of the Act under which Dr Miller’s application to the AIRC was made.  The jurisdiction exercised by the AIRC under Subdivision B of Division 3 of Part VIA of the Act is not a jurisdiction with respect to industrial disputes extending beyond the limits of any one State; it is a jurisdiction based upon s 51(xx) of the Constitution.  As the decision of the Full Court of this Court in Miller v Australian Industrial Relations Commission makes clear, s 170CG(3) requires the AIRC to do precisely that which von Doussa J considered to be beyond the AIRC’s jurisdiction under the earlier statutory regime.  That is, to determine matters touching on an applicant’s existing legal rights.  In the circumstances little assistance is gained for present purposes from the decision in Hatchett’s case.

71                  A contrary view to that for which counsel for Dr Miller contended has been taken in England.  In Green v Hampshire County Council [1979] ICR 861 (“Green v Hampshire CC”) Fox J held that the decision of an industrial tribunal, which gave a fully reasoned decision, was a judicial decision by a judicial tribunal for the purposes of what in Australia would be called issue estoppel.  The case concerned facts markedly similar to the present.  The plaintiffs, who were husband and wife, had their employment as superintendent and matron respectively of a young persons’ home terminated.  They appealed to the National Industrial Relations Court.  The tribunal in a full written judgment dismissed the complaints.  Some time later the plaintiffs initiated proceedings in the Chancery Division of the High Court.  By their statement of claim they sought declarations that the dismissal was illegal, ultra vires and void; declarations that the procedure adopted by the defendants was contrary to the rules of natural justice; orders for restitution of their employment and an inquiry as to damages and the payment of damages.

72                  In Green v Hampshire CC Fox J at 864 stated:

“It is clear that a statutory tribunal such as the industrial tribunal is a judicial tribunal for the purposes of the doctrine [ie res judicata]: see Spencer Bower and Turner: Res Judicata 2^nd ed. (1969), para. 24 and the cases there cited, and I see no reason to doubt that it was a judicial decision.  The tribunal gave a full reasoned judgment.  It contained an investigation of the facts, an analysis of the facts, findings of fact, and, lastly, the application of the law to those findings.

For the operation of the doctrine there must, however, be an identity of subject matter between the proceedings.  That identity may arise from a cause of action estoppel or from issue estoppel.  The present case is admittedly not of the first kind, but it is in my view issue estoppel.”

I note, incidentally, that Handley at [23], like the preceding edition of the same text referred to by Fox J, states that the decisions of statutory tribunals may be “judicial decisions” for the purposes of the doctrine of issue estoppel.  Indeed, Green v Hampshire CC is cited by the learned author in a footnote.

73                  Returning to Green v Hampshire CC, at 864 Fox J stated:

“The tribunal found that the plaintiffs were dismissed and that such dismissals were not unfair.  Those findings are inconsistent with the contention that the plaintiffs were never lawfully dismissed at all, that the defendants were in breach of contract, and acted illegally and contrary to natural justice.”

At 866 his Honour continued:

“Essentially this case, and in particular the allegations under paragraphs 5, 6 7 and 9, is just re‑litigation of the matters decided by the industrial tribunal in May 1973.  The matter is to some extent differently presented and some new arguments have been added, but essentially it is the old dispute all over again.  The plaintiffs had their opportunity of litigating the matter and they failed to succeed before the tribunal.  They cannot start again now.  I quite appreciate that the plaintiffs feel that if the arguments which they now put forward had been before the tribunal in 1973 the result might have been different.  In fact I do not think it would have been different at all, but I appreciate that the plaintiffs think so.  Be that as it may, the essential matters were decided in 1973 after a very full hearing and in a very full judgment, and there must be an end to this litigation.

In the circumstances, the present action is misconceived and is an abuse of the process of the court.  In the circumstances, I direct that the statement of claim be struck out and the action dismissed.”

74                  In my view, the approach adopted by Fox J in Green v Hampshire CC is consistent with Australian authority.  In The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 (“Guba’s case”) Gibbs J, with whom in this regard Menzies and Stephen JJ agreed, at 453 said with reference to issue estoppel:

“The use of the phrase ‘judicial tribunal’ in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative ….  The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc …. ” (citations omitted)

75                  In Australian Transport Officers Federation v State Public Service Federation (1981) 34 ALR 406 at 413 the Full Court of this Court doubted whether the principles of res judicata or issue estoppel apply to proceedings of the Conciliation and Arbitration Commission (“CAC”).  However, at the time that the Full Court expressed its doubt, proceedings of the kind that may now be brought in the AIRC under Part VIA of the Act could not be brought in the CAC.

76                  In the more recent case of Blagojevch v Australian Industrial Relations Commission (2000) 172 ALR 611 (FC) Moore J at [14] observed:

“…There remains an unresolved issue whether issue estoppel can arise as a result of proceedings in the Commission involving the exercise of the arbitral power: see Australian Transport Officers Federation v State Public Service Federation (1981) 34 ALR 406.  However, in my opinion, different considerations arise in relation to the arbitration of a claim in which it is alleged that the termination of an employee’s employment has been harsh, unjust or unreasonable.  That inquiry falls, in my opinion, squarely within the observations of Gibbs J in Administration of the Territory of Papua and New Guinea v Daera Guba ….”

His Honour went on to cite the final sentence from the extract from the decision of Gibbs J set out in [74] above.

77                  I agree with the above remarks of Moore J.  It seems to me that s 170CI of the Act (see [26] above), which makes an order of the AIRC under s 170CH of the Act, subject to any right of appeal to the Full Bench of the AIRC, final and binding between the parties, reveals a legislative intention that a decision of the AIRC under s 170CH of the Act can give rise to issue estoppel.

78                  It is therefore necessary for consideration to be given to the issues that were determined by the Full Bench of the AIRC.  As is set out above (see [15]), in Miller v Australian Industrial Relations Commission the Full Court of this Court stated that the Senior Deputy President was required on Dr Miller’s application under s 170CE of the Act to determine whether there existed a valid reason for the termination of Dr Miller’s employment by the University.  That is, as I understand it, the Full Court held that the determination of the AIRC on Dr Miller’s application under s 170CE of the Act directly involved the issue of whether there existed a valid reason under the certified agreement for the termination of Dr Miller’s employment.  Subsequently the Full Bench of the AIRC decided to arrive at its own conclusions as to the correct decision on Dr Miller’s s 170CE application.  The Full Bench concluded that the direction given to Dr Miller to assume the duties of FYLD was both reasonable and lawful.  It further concluded that the evidence before it disclosed conduct on the part of Dr Miller amounting to serious misconduct, namely conduct constituting a serious breach of contract in evincing an intention no longer to be bound by the contract.  It found that there existed a valid reason under the certified agreement for the termination of Dr Miller’s employment by the University.

79                  In the present proceeding Dr Miller by paragraph 1 of the amended application seeks a declaration, in effect, as to the meaning of the term “serious misconduct” in the certified agreement.  The only purpose of such a declaration would seem to be to undermine the process of reasoning whereby the Full Bench of the AIRC found that there was a valid reason under the certified agreement for the termination of Dr Miller’s employment by the University.  The declaration is sought to support the claims made by paragraphs 3 and 5 of the amended application.  In my view Dr Miller is estopped from re‑litigating the issue of whether there was a valid reason under the certified agreement for the termination of his employment by the University.  I incline to the view that, for this reason, he is estopped from seeking a declaration as to the meaning of “serious misconduct” in the certified agreement.  If he is not so estopped, the claims for the declaration, in my view, gives rise to an abuse of process.  Pursuit of the claim would be “unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings” (see Walton v Gardiner (1992) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 393).

80                  By paragraph 2 of the amended application Dr Miller seeks a declaration that the University breached the certified agreement by summarily terminating his employment.  In my view Dr Miller is also estopped from re‑litigating this issue which has been determined adversely to him by the Full Bench of the AIRC.  For the same reason Dr Miller is estopped from claiming penalties in respect of the alleged breaches of the certified agreement by the University (paragraph 3 of the amended application), and from claiming an entitlement to payment in lieu of notice under clause 14.0(d) of the certified agreement (paragraph 5 of the amended application).  The Full Bench of the AIRC determined that Dr Miller was not entitled to notice of termination under clause 14.0(d) of the certified agreement.

81                  Paragraph 6 of the amended application claims damages for breach of the contract of employment between Dr Miller and the University.  The statement of claim filed by Dr Miller reveals that this claim is based on the allegation that the direction that he performed the duties of FYLD was a repudiatory breach of contract on the part of the University in that it required him to perform duties which were inconsistent with his position as Associate Professor.  In my view, in view of the findings of the Full Bench of the AIRC, Dr Miller is estopped from re‑litigating this issue.  If I am wrong in this regard, I consider that the claim gives rise to an abuse of process as it seeks to re‑litigate anew the case disposed of by the Full Bench of the AIRC.

Conduct of the University

82                  It remains for consideration to be given to the submission advanced on behalf of Dr Miller that, having regard to the history of this proceeding and of Dr Miller’s application under s 170CE of the Act, it is an abuse of the process of the Court for the University now to place reliance on s 170HB of the Act and issue estoppel.  Reliance was placed on Walton v Gardiner; Rogers v The Queen; Jago v The District Court of New South Wales (1989) 168 CLR 23 and CSR Limited v Cigna Insurance Australia Limited (1997) 189CLR 345.

83                  In Walton v Gardiner, the High Court, by a majority (Mason CJ, Deane and Dawson JJ) dismissed an appeal from a decision of the Court of Appeal of New South Wales which permanently stayed certain disciplinary proceedings in the Medical Tribunal established under the Medical Practitioners Act 1938 (NSW).  At 392‑393 of the majority judgment their Honours observed:

“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.”

Their Honours at 393 made reference, by way of examples, to proceedings clearly seen to be foredoomed to fail, proceedings brought within the jurisdiction of a clearly inappropriate forum and proceedings brought in circumstances which do not give rise to an estoppel but which are unjustifiably vexatious because they seek to litigate anew a case already disposed of by an earlier proceeding.  At 394 their Honours referred, with apparent approval, to the judgment of Gaudron J in Jago v The District Court of New South Wales where her Honour had stressed (at 74) that the power of a court –

“to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands.”

The majority judgment at 398 concluded that no error of principle or fact had been shown to affect the decision of the Court of Appeal to permanently stay the proceeding before the Medical Tribunal.  Their Honours described the decision in the following way:

“… that decision was the result of a weighing process including a subjective balancing of the various factors and considerations supporting or militating against a conclusion that a continuation of the proceedings in the Tribunal would be so unfairly and unjustifiably oppressive of the respondents as to constitute an abuse of the Tribunal’s process.”

84                  In Rogers v The Queen the High Court, again by a majority (Mason CJ, Deane and Gaudron JJ), held that it was vexatious, oppressive and unfair for the prosecution to tender a confession which in earlier criminal proceedings had been held not to have been made voluntarily as it exposed the accused to re‑litigation of the issue of the voluntariness of the confession.  Mason CJ at 256‑257 said:

“This issue has already been conclusively decided in the appellant’s favour because the confessions sought to be tendered – although relating to different crimes – were made at the same time and in exactly the same circumstances as the confessions that were the subject of the voir dire.  Re‑litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue.”

85                  Perhaps more relevantly, having regard to the submission advanced by Dr Miller, Deane and Gaudron JJ at 274‑275, after expressing the view that issue estoppel is justified by the same policy considerations that give rise to res judicata or cause of action estoppel, and is thus not a true estoppel, said:

Of course, there may be true estoppels which prevent a person from raising an issue bearing on a matter to be judicially determined.  An estoppel of that kind may come about because of the way in which proceedings have been conducted with the result that the issue cannot thereafter be raised in those proceedings or on appeal.  And if a party fails to raise an issue although he or she might reasonably have done so, there may well be a true estoppel which precludes that party from raising it in later proceedings.” (Footnotes omitted)

Their Honours did not expand upon the nature of the issues that might be affected by an estoppel of the kind to which they referred.

86                  Jago v The District Court of New South Wales was concerned with whether a criminal prosecution should be stayed by reason of delay in the presentation of the indictment.  For present purposes it provides no assistance additional to that provided by the authorities considered above.

87                  The passage in CSR Limited v Cigna Insurance Australia Limited upon which Ms Howell placed reliance is found in the joint judgment of the majority (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).  At 391 their Honours said:

“The counterpart of a court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion.”

88                  It is true that the history of this proceeding has been unhappy.  Some responsibility for this must, in my view, be accepted by both parties.  It was Dr Miller who chose to invoke the jurisdiction of this Court having earlier made an application to the AIRC based upon essentially the same facts.  The University did not immediately challenge his right to do so, but rather adopted the stance that he was entitled to advance the claims made by him in this proceeding.  However, as it seems to me, the decision of the Senior Deputy President was as much an obstacle to Dr Miller’s bringing this proceeding as the decision of the Full Bench reached following the orders of the Full Court of this Court.  Dr Miller’s position would not have been advanced, in my view, had he persuaded the Full Bench of the AIRC to stand over his application for leave to appeal against the decision of the Senior Deputy President until the hearing and determination of this proceeding.

89                  For the purpose of considering the submission advanced on behalf of Dr Miller I am prepared to assume, contrary to the view to which I incline, that the failure of the University to raise the issues raised by the application at an earlier time is capable of constituting an abuse of process.  Making that assumption, I am not persuaded that it is necessary for the purpose of protecting the integrity of the process of the Court, in the circumstances of this case, for the Court to prevent the University from now relying on s 170HB of the Act, issue estoppel and, so far as relevant, its alternative argument that this proceeding is an abuse of the process of the Court.  When the consequences of the University’s delay and its previous assertions concerning Dr Miller’s right to maintain this proceeding are weighed against the public policy considerations which support the doctrine of issue estoppel there seems to me to be no doubt that the public policy considerations must prevail.  Those public policy considerations include that there is a need for judicial determinations to be final, binding and conclusive and that individuals and corporations are to be protected from being required to litigate afresh matters which have already been determined by a judicial process.

90                  Ordinarily the Court would use its wide powers with respect to costs to alleviate any injustice suffered by one party in circumstances where the other did not act with appropriate promptness in raising a critical issue with the result that the first party incurred legal costs ultimately thrown away.  The extent to which, notwithstanding s 347 of the Act, the Court might be able, assuming that it were persuaded that it was appropriate to do so, to make an order or orders for costs in this matter is an issue upon which the parties will have an opportunity, if they so wish, to be heard.

91                  Despite the fact that the application now made by the University ought to have been made earlier, I am not persuaded that the application constitutes an abuse of process.  It was not argued, and, in my view, rightly not argued, that the University is prevented by any true estoppel from raising the issues raised by this application.  To the extent that it may have been argued that the University earlier waived reliance on the arguments advanced on this application, no authority was identified which gave support to the notion that a party may waive reliance on doctrines such as res judicata, issue estoppel and abuse of process which are calculated primarily to protect the public interest rather than to give rise to private rights.  Indeed, the nature of the waiver alleged was not particularised in any way.  As Lord Wright pointed out in Ross T Smyth & Co Ltd v T D Bailey, Son & Co [1940] 3 All ER 60 at 70 “[t]he word ‘waiver’ is a vague term used in many senses” (see also Banning v Wright (Inspector of Taxes) [1972] 2 All ER 987 per Lord Simon of Glaisdale at a1007‑1008).  I am not satisfied that any issue of waiver arises on this application.

conclusion

92                  It will be ordered that this proceeding be permanently stayed.

Associate:

Dated:              16 July 2002