C2015/2437, Transcript of Proceedings [2015] FWCTrans 347 (12 June 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051922

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JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER JOHNS

C2015/2437

s.604 - Appeal of decisions

Director of the Fair Work Building Industry Inspectorate

and

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2015/2437)

Melbourne

10.05 AM, FRIDAY, 22 MAY 2015

PN1

JUSTICE ROSS: Can I have the appearances please.

PN2

MR N HARRINGTON: Good morning members of the Bench. My name is Harrington, initial N. I seek permission to appear for the appellant today. I think we ve made some written submissions on that issue.

PN3

JUSTICE ROSS: Thanks, Mr Harrington.

PN4

MR G BORENSTEIN: I appear for the respondent in the matter, Borenstein, initial G.

PN5

JUSTICE ROSS: Is there any objection to the application for permission to appear.

PN6

MR BORENSTEIN: I make no submission regarding that.

PN7

JUSTICE ROSS: We ll grant permission to appear having regard to the complexity of the matter. We think it would be more efficiently dealt with.

PN8

MR HARRINGTON: Thank you, your Honour.

PN9

JUSTICE ROSS: Mr Harrington, we ve had the opportunity to read your submissions, you don t need to do that for us.

PN10

MR HARRINGTON: I won t be, yes.

PN11

JUSTICE ROSS: For myself, I ve got a number of questions that arise from your submission, but perhaps before we get to that, was there anything short you wanted to put by way of oral argument?

PN12

MR HARRINGTON: There is, because harking back to your determination on permission in terms of complexity, if one reads more than a few cases in this area, there is a deal of complexity on the question of the nature of estoppels, what they re doing and whether they apply in State Tribunals, Federal Tribunals. There is a little bit that I would like to open with, which might answer some of your questions, your Honour.

PN13

It s probably best if that I start with handing up the folder of authorities which were provided to me - they ve already been provided, thank you. I will have reference to another two decisions, both called Miller, both by the same person, Miller. There s Miller v University of New South Wales which is a Full Court decision. My learned friend was going to rely upon that, but there was discussion about my instructor about this so, he might do me the favour of handing his copy up now, so that I can take you to it.

PN14

I was ably assisted this morning, I hope, by an associate to the Bench. There s an earlier Miller decision by Branson J that I wanted to take the Bench to. I haven t seen a copy of it as yet, but I think it was being copied for the Bench. Thank you.

PN15

Can I start with three propositions, members of the Bench? The first is what I call the no adjudication point. The submission, and this has been dealt with in the written submission, is that his Honour did not address, nor provide any reasons in respect of the operation of an Anshun estoppel such as to ground an abuse of process. That was not adjudicated upon when one comes to the primary decision. The critical paragraph you might recall is paragraph 28 under heading, consideration of use of process.

PN16

JUSTICE ROSS: Are you suggesting that in a decision you have to address every submission of Counsel, is that correct?

PN17

MR HARRINGTON: I am suggesting in accordance with authority, that if it s a material and important significant legal submission, it must be addressed in my submission by the decision maker. I refer to the authority of Linfox in the Federal Court and Soliman and also Barrack.

PN18

JUSTICE ROSS: In each of those, well, Soliman you re dealing with not coming to grips at all with the submissions put by a party. Your Anshun estoppel point was put in aid of your abuse of process point, was it not?

PN19

MR HARRINGTON: Correct, yes.

PN20

JUSTICE ROSS: Your abuse of process point was dealt with. It s a slightly different - I mean I understand what you say about it, but it s a slightly different proposition. I think you also refer to Edwards v Judici. The proposition there is that when the statute directs you to take into account certain matters, and you re obliged to make, to the extent they re relevant, findings about those matters.

PN21

MR HARRINGTON: That s a broader principle.

PN22

JUSTICE ROSS: It is, it is.

PN23

MR HARRINGTON: I think one goes to the Linfox decision, you will see it put it in a much more pithy sense, and that s at tab 13 of the folder. I think it s probably one of the more recent decisions too. Tab 13.

PN24

Picking up on your points, or the way in which you put the proposition to me, your Honour, and this is 47. First, it is not necessary for those making decisions to refer to every piece of evidence and every contention made by a party. I accept that proposition, but one needs to read Dow.

PN25

Although reasons for decision are not to be scrutinised with an eye for discerning error, where none truly exists. More may be expected of experienced and legally qualified members of Fair Work Australia who have had the benefit of written submissions filed by experienced legal practitioners, but there remains no unqualified universally applicable legal requirements to every submission advanced. Much depends upon the importance of the submission of the claims being made.

PN26

And it goes on.

PN27

JUSTICE ROSS: No, I understand the point.

PN28

MR HARRINGTON: This was significant because yes, abuse of process was dealt with by his Honour at paragraph 28, because it was advanced in written submissions by my instructor just before Christmas and that s in the court book.

PN29

DEPUTY PRESIDENT GOSTENCNIK: The passage that you refer to makes it clear that the mere fact that an insignificant submission is not taken into account, does not necessarily result in a finding that there is jurisdictional error, but it may do so.

PN30

MR HARRINGTON: May. That is correct, and it can be put two ways. It can be said, well you put it, it was heard, doesn t mean it wasn t considered, but this is what the authorities say. If it s significant, if it matters, it goes to a very direct issue and it s not touched upon, addressed, no nomenclature is used in gauging the subject matter that the authorities say that may, or tends to suggest, but perhaps provides a foundation that it has not been considered, when you see no essence of it.

PN31

Because what his Honour did, he moved from paragraph 28 on court book page 20 to 21, he moved to Rogers v Queen. No issue with that, because we refer to Rogers and the Queen and to the extent that - I ll give that some context. If one turns to the court book at page 114 tab 9, outline of submissions of the director of Fair Work Building Industry Inspectorate, abuse of process, filed on a call just before Christmas, on page 116, 5 December 2014.

PN32

If I take you to paragraph 6 under the heading abuse of process. The principles of Anshun estoppel which have their foundation in notions of abuse of process extend to prohibition of relitigation of issues which could have, and should have been litigated in earlier proceedings and there's a reference to footnote 4 and then ibid that to Rogers and the Crown, or the Queen above. It was put directly, this is an abuse of process submission grounded upon an Anshun estoppel. Some might say that s a bit novel in the Commission, but in any event, it was grounded upon an action - - -

PN33

JUSTICE ROSS: It s not a bit novel, I m not aware of it being done before.

PN34

MR HARRINGTON: Your Honour, that s right, because you were involved in a decision with the Vice President, where you dealt with issue estoppel.

PN35

JUSTICE ROSS: That s right.

PN36

MR HARRINGTON: You said, doesn t get traction here because that was actually a permit application case, if I recall correctly.

PN37

JUSTICE ROSS: Issue estoppel is dealt with in the unfair dismissal area as well, or really race judicata where parties have reached a settlement agreement in respect of a matter.

PN38

MR HARRINGTON: So, Anshun estoppel was very much put on issue and in the transcript as well, his Honour came to and engaged with the counsel for the director below, but we get to the decision - - -

PN39

JUSTICE ROSS: Doesn t that rather suggest that he did consider it?

PN40

MR HARRINGTON: It suggests that he engaged with it on transcript because he recognised it was a significant part of the case, but when his Honour came to providing his reasons, returning to paragraph 28 in the decision, what his Honour did, was to move from paragraph 28, straight into paragraph 29, Rogers and the Queen. Now Rogers was referred to, I ve just taken you to that. Now Rogers and the Queen was a High Court decision that was - I should take you back, it s in the folder. It s tab 2, thank you for that.

PN41

Rogers was concerned with issue estoppel in a criminal context, a very important decision in a criminal context on issue estoppel. Rogers also dealt with abuse of process in a general sense, and that is why the director relied upon Rogers to illuminate that principle but the director made it clear. Rogers is relied upon for abuse but we re here on an Anshun estoppel, which as I said, might be slightly exotic in this jurisdiction. That s what was put front and centre, it was put squarely.

PN42

JUSTICE ROSS: You weren t really there on an Anshun estoppel, you were there on an abuse of process and you were relying on Anshun estoppel to establish the abuse of process.

PN43

MR HARRINGTON: Yes, that s more eloquently put than I put it. That s exactly right.

PN44

JUSTICE ROSS: No, we understand the no adjudication point.

PN45

MR HARRINGTON: Thank you. The second point that I wish to advance, or proposition, is that an Anshun estoppel can apply in a permit application process.

PN46

JUSTICE ROSS: In what circumstances? Leave aside the legal question of its application. How would it arise?

PN47

MR HARRINGTON: It arises where a party has had an opportunity in that, I ll call that administrative process, to put its best case, if I can put it like that.

PN48

JUSTICE ROSS: Let me just take you to one question that I was going to take you to. When you look at the delegate s decision back in 2014, look at the last paragraph. It s plain that what the delegate decides is not a fit and proper person, therefore I don t need to consider any conditions. You see that?

PN49

MR HARRINGTON: I recall reading that, but yes, I ll go to it if you like.

PN50

JUSTICE ROSS: There s no need to.

PN51

MR HARRINGTON: Yes.

PN52

JUSTICE ROSS: You can take my word for it, but that s what it says.

PN53

MR HARRINGTON: I think it s about 266 or thereabouts or something.

PN54

JUSTICE ROSS: On the recent Full Federal Court authority in the MUA case, that s an incorrect application of the law. He should have considered the question of conditions as part of the fit and proper person issue.

PN55

MR HARRINGTON: I m not sure what your point is. I agree with the factual underlay of whatever proposition you are advancing, but - - -

PN56

JUSTICE ROSS: The point is this. If we accede to your argument, they re not allowed to reargue that, even though the delegate - - -

PN57

MR HARRINGTON: No, they re allowed to reargue it. They re allowed to reargue it if there s an error, as you pointed out.

PN58

JUSTICE ROSS: No, no.

PN59

MR HARRINGTON: But they re also allowed to reargue it, if there s a substantial factual difference emerges.

PN60

JUSTICE ROSS: But why can t they - well, there s plainly a substantial legal difference, isn t there, between what the delegate and the Appeal Court understood the law to be, and what the Full Federal Court now says is the law.

PN61

MR HARRINGTON: Your Honour, you seem to be advancing that in the context where I m appealing a decision, reasons from the Vice - yes, but I m looking at the practical significance of it acceding to your appeal.

PN62

JUSTICE ROSS: Even if we accept everything you say, there would be nothing to stop him applying tomorrow on the basis that there s been a change in the legal interpretation of the statutory framework and therefore he s entitled to run that case, isn t he?

PN63

MR HARRINGTON: That seems to be a proposition that goes to utility on the appeal.

PN64

JUSTICE ROSS: That might be right, just let me deal with the questions sequentially.

PN65

MR HARRINGTON: Yes.

PN66

JUSTICE ROSS: Do you agree with that proposition that the effect of the Full Federal Court decision is it shifts the legal landscape for detailing with a determination of applications of this nature? That s a change in circumstances from the one which confronted the applicant when he was before the delegate in 2014.

PN67

MR HARRINGTON: I ll have to accede to that because I ve read the decision of the Full Court which says error, but on a discretionary grounds.

PN68

JUSTICE ROSS: Let s leave aside the merit and other - - - No, no, but that doesn t matter, they ve said what the law is and we re obliged to apply it.

PN69

MR HARRINGTON: The delegate approached it differently back then.

PN70

JUSTICE ROSS: That s right. Well, let s assume we re here today and we re dealing with a fresh application by the applicant on the basis that well, even assume, I m not going to advance any different facts, but I want to advance this argument and I want to go to conditions. In those circumstances, what work would Anshun estoppel have?

PN71

MR HARRINGTON: Don t we have to break that down a bit further because you get - I may have misunderstood the Full Court Federal Court decision, but I says, I understand it, you address the question of fit and proper and then you come to the question of conditions along the way. Here, the point that we re advancing is that it wasn t - - -

PN72

JUSTICE ROSS: No, what they ve said is, that you can - Section 515 may properly be invoked when imposed conditions on a person whose been found to not to be a fit and proper person such as to give rise to the issue of a permit .

PN73

MR HARRINGTON: Yes.

PN74

JUSTICE ROSS: You may find absent conditions, they re not a fit and proper person, but with conditions, they are, and therefore they get the permit.

PN75

MR HARRINGTON: I accept the way that we ve advanced the case here on appeal is a focus on fit and proper, the Anshun operating in respect of fit and proper, because we didn t have to worry about conditions.

PN76

JUSTICE ROSS: No, it doesn t go to your case here. It goes to the simple proposition that, let s assume you succeed. You persuade us, we overturn the decision. Mr Mooney comes along tomorrow, makes his application and wants to contend that well, there s been a shift in the legal framework. If that was the matter that was then before that member, what work would Anshun estoppel have to do?

PN77

MR HARRINGTON: In that particular context, it may not have any work to do.

PN78

JUSTICE ROSS: Then what s the utility of granting your appeal?

PN79

MR HARRINGTON: I said may not. Your Honour s moved very quickly to utility which was the point - - -

PN80

JUSTICE ROSS: Okay, well then, may not. Point me to a case that remotely supports the proposition that when the law changes, the Anshun estoppel cases are looking at when you would have had the opportunity to run it, well how would that have arisen, given the state of the law at that stage?

PN81

MR HARRINGTON: We re not in argument over that proposition. The Anshun - and I was going to come to the philosophical underpinnings of Anshun and the Anshun cases, which have emerged both through the case, the High Court decision itself in 1981 and thereafter. But, your Honour, subject to getting instructions on this, I accept that if a superior court comes in and says the law is actually this, and you ve missed out, to put it very generally, earlier on, and I don t make the proposition or advance the proposition today that Mr Mooney could never reapply, that s not part of our case.

PN82

JUSTICE ROSS: That s the other thing I wanted to come to, and I ll come to that in a moment.

PN83

MR HARRINGTON: In those circumstances, if there s a fundamental change in the legal landscape and the applicant says well, I wish to now advance what three judges of the Federal Court have said about one of the critical considerations, I don t advance the proposition that an Anshun would cut him out, that it would stop him from doing that.

PN84

JUSTICE ROSS: I accept that that doesn t apply to - that s a prospective issue, doesn t apply to the Vice President s decision, because that was handed down before and it wasn t a matter argued.

PN85

MR HARRINGTON: It is what it is. It s an historical fact.

PN86

JUSTICE ROSS: I agree with that. Can I go to - because it wasn t clear to me from your submissions about what s then the effect of it. When you say he could never apply, well at what point can he apply? How do you say it works? Are you saying I d rather understood you submission to be as Anshun would operate, it s a permanent stay?

PN87

MR HARRINGTON: No, that well sorry, it was never advanced on that basis as a permanent stay, because I don t think that can be defended. If you say it s a situation where you look at what was not advanced that could have been advanced, because that s how Anshun is triggered, at the time. If a party comes back and says, I think it s about 14 days after the Full Bench decision, here I am again, because the Full Bench has said maybe I should have another go, and principally, I m going to put things that I could have put that first time around. That is what involves the triggering of the abuse and the abuse is not as between parties inter partes, the triggering of the abuse, the abuse goes to the state and its use of resources and the vexing of the institution.

PN88

JUSTICE ROSS: I understand that point.

PN89

MR HARRINGTON: Because I think there s been an attempt to corner my client into saying, well it s not inter partes, you re not a true real litigant, you re just someone who s got a statute right to intervene. You re not really vexed.

PN90

JUSTICE ROSS: No, leave that aside. I had understood your submission really to be focussed on what is one of the characteristics that comes in the abuse of process cases and that is it s the use of a court or tribunal s process to bring the administration of justice into disrepute.

PN91

MR HARRINGTON: Which is disrepute, is heavily put, but it s the abuse of resources as it were.

PN92

JUSTICE ROSS: No, I know what you mean. I follow the argument if they re coming along the next day. Here, it s over 12 months. In the context of a right of entry permit that operates for what, three years?

PN93

MR HARRINGTON: Yes.

PN94

JUSTICE ROSS: At what point do you say he could have come?

PN95

MR HARRINGTON: Where there s a material change, in facts and circumstances, that may not have been available to him to advance the first time around. Your Honour, with the language you ve used, it s referring to passage of time alone as I understand it.

PN96

JUSTICE ROSS: Yes, but also, isn t there a conceptual difference here? When you ve got a cause of action, the facts giving rise to the cause of action may not change. Here, you re dealing with the concept of whether someone s a fit and proper person. That s a concept that isn t fixed at a point in time.

PN97

MR HARRINGTON: I agree with that proposition.

PN98

JUSTICE ROSS: We see this in legal practitioners. I hesitate to dip into that area, but you see that at a point in time on the commission of an offence, they re found not to be a fit and proper person. Then through the process of rehabilitation, redemption et cetera, over a period of time, they re reassessed and then found to be a fit and proper person. Well, it seems to be by analogy, that might apply here too.

PN99

MR HARRINGTON: Can I assist your Honour, in those observations by taking you to a case at tab 14 that was referred to in the December submissions by my instructor. This is Prothonotary of the Supreme Court of New South Wales v DeRocca and it s right on point in terms of what your Honour was observing.

PN100

This involved at paragraph 1, which is page 3 of the decision, Ms DeRocca was convicted in July 2011 of 43 counts of fraudulent misappropriation of money between December 2005 and September 2009. The misappropriation from the trust was $226,000 plus and she was working as a solicitor in a law group. So, classically on point in terms of what your Honour was observing.

PN101

In the criminal courts, she received imprisonment of 18 months but that was served by way of home detention and at paragraph 9, this is the background that sets out who the person herself was and what occurred.

PN102

It was noted that there was a substantial amount of money involved. The time period over which the offences were committed and that Ms DeRocca s motive was some peculiar amalgam of perceived need and pure greed. That there was a degree of planning ...

PN103

Those sort of factors that often happens when theft from an employer. There, at page 6 of the judgment we ve got the professional misconduct provisions, but what I m really taken the Bench to, is if I could take you to about 26, where it says in Alcorn.

PN104

The court was prepared to make a declaration that the practitioner was not a person of good fame and character.

PN105

It goes on.

PN106

In circumstances where it proved to show that he had established himself as a different man, had not and could not be forthcoming.

PN107

Reference is made to what was said by Justice of Appeal Walsh in Xeniolas at 461.

PN108

Reformation to the character and behaviour can doubtless occur, but their occurrence is not the usual, but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and is not proved that anything of a discreditable kind has occurred. The man has exhibited serious deficiencies in his standards of conduct and his attitudes and must require clear proof to show that some years later he has established himself as a different citizen.

PN109

JUSTICE ROSS: That s a somewhat pessimistic view of the rehabilitation system, I might say.

PN110

MR HARRINGTON: Perhaps he had a hardened heart to some extent. If I read down, he went on to note.

PN111

Quite adverse findings on the facts relating to an earlier period when he was already mature in years make it difficult to come to a conclusion that he s now of good character at this latter time. There can of course be no universal rule to such a question. Each case must depend on its own facts and circumstances.

PN112

It goes on.

PN113

In the present case Ms DeRocca has served her sentence of home detention, but there is no evidence to show that she has reformed her character from that which it was when the serious offences of dishonesty were committed. Ms DeRocca voluntarily surrendered her practising certificate.

PN114

And it goes on. If I take you over the page.

PN115

The Prothonotary submits that mere effluxion of time without the further adverse conduct does not lead to satisfaction as to a reformation of character in respect of offences continuing over a period of three and a half years and ending only four years ago, the court agrees. In those circumstances the court is not satisfied that Ms DeRocca is currently a person of good fame and character.

PN116

Illustration of the principle.

PN117

JUSTICE ROSS: It s unexceptional, and I certainly wouldn t quibble with the proposition that mere effluxion of time is necessarily going to ground a different finding.

PN118

MR HARRINGTON: His Honour did rely heavily, in my submission in - - -

PN119

JUSTICE ROSS: Well he also had evidence from Mr Mooney.

PN120

MR HARRINGTON: He did, he did.

PN121

DEPUTY PRESIDENT GOSTENCNIK: Isn t that a material difference, because the delegate determined the matter, effectively on the papers.

PN122

MR HARRINGTON: Yes, no statement, no oral evidence. I accept that.

PN123

DEPUTY PRESIDENT GOSTENCNIK: Here before the Vice President, Mr Mooney was prepared to come along to give evidence, to expose himself to cross-examination. Why haven t the circumstances changed?

PN124

MR HARRINGTON: That s where the Anshun point kicks in which was all of that. All of that was available first time round, but it was disavowed. That course was determined not to be taken. And this is where we get got the Anshun criteria. The Anshun terrain - - -

PN125

DEPUTY PRESIDENT GOSTENCNIK: Well it was determined not be taken because that was the common practice of decision making before the delegate, and there s nothing in the material to suggest that he was asked.

PN126

MR HARRINGTON: Sorry, your Honour, I didn t read anything about - and I m not being chippy about this. I didn t read it was a common practice. I haven t appeared in any of these sorts of matters. I don t know what the common practice is.

PN127

JUSTICE ROSS: It was.

PN128

DEPUTY PRESIDENT GOSTENCNIK: It was.

PN129

MR HARRINGTON: Right, sorry.

PN130

COMMISSIONER JOHNS: But Mr Harrington in July 2013 when the first application is made, evidence could not have been led from Mr Mooney that between the period July 2013 and July 2014, he had, in that year performed his role with responsibility and not breached any workplace laws.

PN131

MR HARRINGTON: Of course.

PN132

COMMISSIONER JOHNS: That evidence couldn t have been led in July 2013. It could only have been led in July 2014. Similarly, in July 2013, there could have been no evidence led that there d been no further contravention of industrial law. So, it s different to the case you ve taken us to, because in that one, following the conviction, she had not been in a position of trust and able to demonstrate the difference.

PN133

MR HARRINGTON: Didn t have the certificate I think. I think she wasn t practising.

PN134

COMMISSIONER JOHNS: But in this matter, surely, Mr Mooney has continued in a position of trust and is able to give evidence that in the year since, things are different. That evidence could never have been led in July 2013.

PN135

MR HARRINGTON: One critical point of distinction there is he was without the permit itself in that period of time. I fully accept that those are the facts Commissioner, which you observe. But he was operating in a difference capacity in that time period.

PN136

COMMISSIONER JOHNS: There s been no breach of his right of entry permit at any point. The things that he s had penalties imposed in respect of, are different industrial laws, so there s no change there at all.

PN137

MR HARRINGTON: Yes, I accept that the point I was making was simply that he didn t have the permit but he was still engaged in the practice of being an organiser and he was out in the field, as it were.

PN138

JUSTICE ROSS: Can I take you back, Mr Harrington, before we went down the other path. You are putting the proposition that he s not permanently stayed.

PN139

MR HARRINGTON: Correct.

PN140

JUSTICE ROSS: He can come back when he s got something different to say that couldn t have been put in the proceedings - - -

PN141

MR HARRINGTON: That s how we would advance the case.

PN142

JUSTICE ROSS: On the basis of what the Commission has just put to you, wasn t he in that position? Because he couldn t have put those things, you ve accepted that, he couldn t have put those matters to the delegate, because they occurred later in time.

PN143

MR HARRINGTON: Yes, I think the qualifier I put on it before in answering your question was matters of substance, or something substantial. There was an effluxion of time, a passage of time when the application was made to the delegate. No doubt about that. There was a period of time in which there had been no so-called contravening or offending.

PN144

JUSTICE ROSS: Wasn t it over 12 months?

PN145

MR HARRINGTON: It was 12 months later. My point is, it is simply 12 months later. That s the point of difference. It s the passage of time. The proposition I ve advanced - - -

PN146

COMMISSIONER JOHNS: But surely Mr Harrington it s more than the passage of time because during that time, he hasn t just sat there and let time expire, he s been in his substantive role as an officer of the union. He s performed his role without contravention. He s performed it as good as he can, without breaching any - - -

PN147

MR HARRINGTON: There s no evidence he s done anything wrong, and I accept that.

PN148

COMMISSIONER JOHNS: That s right, so it s more than just the effluxion of time. He s actually been actively performing his role as an officer of the union without any adverse behaviour.

PN149

JUSTICE ROSS: Unlike DeRocca, where - - -

PN150

MR HARRINGTON: She had home detention and she didn t have it - - -

PN151

JUSTICE ROSS: But also she s not - - -

PN152

MR HARRINGTON: Admitted to practice.

PN153

JUSTICE ROSS: Not doing that work and doing it in a way that doesn t evidence any breach of the law.

PN154

MR HARRINGTON: Yes. The difference, in my submission, is quantitative, in the sense that it is a longer period of time without contravention. That s the nature of the difference.

PN155

JUSTICE ROSS: It becomes a question of degree really, doesn t it, that if it was - and it might come down to this, that as I understand what you are putting, you would accept that well, if it had been a longer period, then that might have been a more material consideration. If he was engaged in his role as a union organiser without any further evidence of breach. But here, the period was only 12 months and you accept the point that well, he conducted his role, he didn t breach anything in that 12 months, but that isn t a significantly material difference to warrant - well, is it a significantly material difference to overcome your Anshun estoppel point? Is that the kernel of it?

PN156

MR HARRINGTON: To take it out of the Anshun? Yes, that s the way it s advanced and paragraph 31, a decision of court book 21, says that The CPU submits the passage of time since when he last contravened industrial law. That s the way his Honour approached it. He didn t talk about what I would call a qualitative difference, a substantive difference. His Honour simply took into account, as he articulates it, there s been a longer period of time since any contravention.

PN157

JUSTICE ROSS: As I understand the appeal, there s no appeal, or you don t advance any submission saying that his Honour made any error in the application of the exercise of his discretion in the application for statutory principles. The error was in hearing the matter at all and he shouldn t have heard it because there was a - - -

PN158

MR HARRINGTON: Yes, I think he has to allow it come on for the abuse of process and then deal with that.

PN159

JUSTICE ROSS: No, no, I agree. The error was in hearing the substantive matter. It wasn t an error arising from his decision.

PN160

MR HARRINGTON: House and the King style discretionary style error.

PN161

JUSTICE ROSS: That s right. I mean it s really the threshold point, isn t it, that he rejected your submission about abuse of process and that was the error.

PN162

MR HARRINGTON: Correct. I can t put it any differently because I don t think it was an amended notice. It s just the standard notice of appeal on one ground.

PN163

JUSTICE ROSS: No it s not. That s the appeal.

PN164

MR HARRINGTON: No doubt the Bench is happy to get a notice of appeal with only one ground as opposed to 25 or 26.

PN165

JUSTICE ROSS: No, I encourage it Mr Harrington, especially when the 25 or 26 seem to repeat the one ground.

PN166

MR HARRINGTON: There you go. Having been in jurisdiction for a while, I did see the one ground and was extremely nervous and thought there must be at least 10 more grounds that can be advanced, but we ve stuck - - -

PN167

JUSTICE ROSS: No, I welcome a focussed debate on one point.

PN168

MR HARRINGTON: That s the point. I m sure that the Bench is across the difference between the estoppels, but just to assist you, can I take you to tab 9 which is a recent decision of the Court of Appeal, it s unreported at this point in time. A fairly recent decision in John Shaw v Gadens Lawyers and Rigby Cooke Lawyers.

PN169

JUSTICE ROSS: Oh, yes.

PN170

MR HARRINGTON: This was a review from VCAT and I know your Honour s had some experience with that. Maybe you know Mr Shaw?

PN171

JUSTICE ROSS: I know McNamara J as well, yes.

PN172

MR HARRINGTON: Mr Shaw, I m not sure if he s good for business, but he likes to sue lawyers who are apparently not doing their job properly. There might be a point in that on occasion, but it seems he had a lot of bad luck because he s suing at least two lots of lawyers on this occasion. It went from VCAT up to the court and really, without getting into the quite complex background facts, if I could refer the court to paragraph 59, where - - -

PN173

JUSTICE ROSS: McNamara J sits as a Vice President of VCAT, that s probably why that comes about.

PN174

MR HARRINGTON: That s perhaps why it went straight to the Court of Appeal as opposed to a single judge.

PN175

JUSTICE ROSS: Yes.

PN176

MR HARRINGTON: Paragraph 59, the President of the Court of Appeal, Maxwell J very helpfully summarises the differences between these estoppels and he says of res judicata, or cause of action estoppel,

PN177

Prevents a party to an action from setting or denying as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in pre-litigation between the same parties.

PN178

Then the next one.

PN179

The principle of issue estoppel is that a judicial determination directly involved an issue of fact or of law disposes once and for all that issue so that it cannot afterwards be raised between the same parties or their privies.

PN180

You might recall if you ve had any regard to the decision in Rogers, that dealt with records of interviews that were in voir dire ruled inadmissible. In a couple of certain armed robbery trials, a couple of years later the police came back with further charges and tried to rely again upon the inadmissible records, that purportedly contained confessions and the High Court ultimately said no, you can t do that because the voir dire was a final ruling on the inadmissibility of that evidence.

PN181

Finally, at 59, President Maxwell says,

PN182

The principle of Anshun estopped prevents a party from later relying upon a claim or a defence which it has unreasonably refrained from raising in earlier proceedings being proceedings so closely connected with the latter subject matter that it might reasonably have been expected that the claim or defence would have been raised in those earlier proceedings.

PN183

That is helpful. His Honour then goes on at 60.

PN184

Each of these estoppels is found on the same principles of public policy that there is a public interest in there being an end to litigation that no person should be twice sued for the same clause.

PN185

JUSTICE ROSS: That s not really the - - -

PN186

MR HARRINGTON: That s not us.

PN187

JUSTICE ROSS: No.

PN188

MR HARRINGTON: But where it goes to is Lambidas which is another decision I produce for a number of reasons. If I might just take the court to a copy of Lambidas. Sorry, before I do that, at 62 at the bottom of the page. President Maxwell in Ford Motor Co of Australia Ltd v Tristar Steering & Suspension Australia Ltd, Goldberg J said

PN189

Underlying the Anshun principle is a public policy issue which may apply independently to the acts of the parties. Mainly that it is in the interests to the administration of justice that all issues which properly belong to the subject matter of litigation, be brought forward at the one time, not only to avoid the possibility of inconsistent decision but also on the ground of providing for an efficient of a scarce resource which is not infinite, namely court resources and judicial time.

PN190

That s the point that I was raising before.

PN191

That Lambidas decision which is at tab 7, is of some interest because there was quite a powerful Bench in the Court of Appeal New South Wales in 1995. It deals with a State Tribunal known as the GREAT Tribunal. The Government and Related Employees Appeal Tribunal. There is, I should say from the outset, a point of distinction between a state tribunal that might be able to exercise actual judicial power or a form or judicial power and a tribunal, a non-chapter 3 court which is this institution, and I ll come to that briefly.

PN192

At page 325, in this decision. Actually if you go back to page 323 you will see that President Kirby, as he was then was, refers to res judicata or cause of action estoppel and then down the page he refers to issue estoppel. Then he comes over the page to Anshun estoppel. This submission I m about to make is at least one step towards the proposition that Anshun estoppels can operate in this Tribunal because as your Honour has observed already, perhaps it is novel because it really hasn t been considered.

PN193

His Honour, down the page at about F, if I can take you to that paragraph.

PN194

At least in the case of a Tribunal such as GREAT, I would not doubt that the Anshun doctrine may apply if an issue which a party later sought to tender to a court, could and ought reasonably to have fairly been placed before GREAT as relevant to the decision in proceedings before it. Even if contrary to my conclusion determinations by Tribunals as such, could not give rise to issue estoppels, because based on notions of pleading and the law of evidence inappropriate in a Tribunal, such foundations would have no application to the operation of Anshun estoppels.

PN195

Such estoppels are not so based. They depend upon considerations of public policy and the reasonableness of the conduct of litigants. Those considerations equally apply to Tribunals such as GREAT as to courts. Accordingly I see no reason why they could not be invoked in the case of successive proceedings involving substantially the same issues before GREAT and before the compensation court.

PN196

As I read the President there, what he was saying was, Anshuns can be established through the determinations of a Tribunal but he was dealing with a State Tribunal and I accept that.

PN197

JUSTICE ROSS: It s the proposition that as President Maxwell observes in the case he refers to. Anshuns can be based on considerations of public policy and it ultimately is a question of the reasonableness of the conduct of the litigants.

PN198

MR HARRINGTON: Correct, and the provenance of the Anshun estoppel is not far removed from the historical res judicata and issue estoppels. They are of the same family, but they have different roles to perform in different contexts.

PN199

JUSTICE ROSS: Yes.

PN200

MR HARRINGTON: I think many authorities refer to that. In terms of the theory behind the Anshun, I ve taken you to the Ford Motor Company decision, so I don t think I need to continue on in that manner.

PN201

Can I refer next to the application of Anshun for the benefit of a minister or government? I refer here to a decision of Wong v Minister for Immigration and Multicultural and Indigenous Affairs and that s at tab 8. It s fairly recent, it was 10 or so years ago. Mr Wong was a vigorous litigant, if you read through the decision. You will see there are many applications he made in both the underlying tribunals, the Refugee Review Tribunal I think and I think he was AAT for a bit.

PN202

The court on this occasion in this decision which is reported [2004] FCAFC 242; [2004] 146 FCR 10, had before it three appeals and one application for an extension of time. Principally, part of the appeal was concerned with the application of the character test for Mr Wong for the purpose of section 501(3) and that s at paragraph 5. The procedural background is complex, it s set out commencing at paragraph 13. You will see over at paragraph 17, there s a reference to the first proceeding and at paragraph 19 there was a second proceeding instituted in the court under the Judiciary Act. You will see at paragraph 30, the issues in the appeals.

PN203

In Mr Wong s first appeal, Mr Wong complains the revocation refusal decision was erroneous because the Minister was not advised of and did not take into account Mr Wong s good conduct since entering Australia and it goes on there. The Minister also had an appeal over at paragraph 35. The Minister came along and said, well, all of this has been dealt with but more particularly, there are issues of res judicata and issue estoppel because of what s already been advocated by Mr Wong in earlier jurisdictions and in earlier hearings.

PN204

You ll see at paragraph 36, there s the commencement of consideration of the relevant legal principles arising on the Minister s appeal. It starts with The doctrines of res judicata and issue estoppel are found on broad rules of public policy expressed in the (indistinct) and I won t read that out, other than to say, the Latin stands for the proposition. A person ought not to be vexed twice for one and the same cause and it goes on there.

PN205

Down the page you ll see at 37.

PN206

A plea in bar may be raised in respect of an issue, not only if the court in the earlier proceeding was actually required by the parties to form an opinion and pronounce judgment, but also in relation to every issue that could properly belong to the subject of the earlier litigation in which the parties exercising reasonable diligence might have brought forward at the time of the earlier litigation.

PN207

It goes on down the page after referring to Port of Melbourne Authority and Anshun decision.

PN208

In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, is an abuse of process to endeavour to raise that issue for the first time at a subsequent proceeding.

PN209

You will see there the nucleus of what was advanced in the December submissions in this case which was it s an abuse based on an Anshun. That s what we require the Vice President to directly address in the reasons.

PN210

Can I take you over the page to 39? It says there that,

PN211

Anshun estopped has been applied in proceedings in the matter of judicial review of administration action insofar as Anshun estoppel is aimed at avoiding abuse of the process.

PN212

It goes down,

PN213

However, where the beneficiary of such a principle as a Minister of State who has no personal interest in the outcome of proceeding, such a principle may be of only secondary significant.

PN214

I raise that because it s incumbent upon me to give you a full overview of this case. I think that s against me, that s a relevant proposition.

PN215

JUSTICE ROSS: This case is also authority for the proposition which is touched on by Magdwick J in Stuart v Sanderson. He makes the point that when the High Court dealt with Anshun and dealt with it from the Full Court of the Victorian Supreme Court, it didn t directly engage with the discretion issue.

PN216

MR HARRINGTON: The special circumstances discretion?

PN217

JUSTICE ROSS: Yes, the exception circumstances, however one phrases it. You see at 38 on page 18 that the court in this case is indicating that what constitutes such circumstances is not fixed, might involve the consideration of a wide range of factors. It s the next bit All of which bear upon the general discretion of a court where justice requires the non-application of a general principle.

PN218

They seem to be saying there s a general discretion that one has regard to what justice requires in the particular case. I suppose on one view it s an elaboration of the proposition that we discussed earlier that ultimately, it s a question of the reasonableness of the conduct of the litigant.

PN219

MR HARRINGTON: Yes, absolutely. That s what s interesting about Stuart and Sanderson, which the woman in that case, Ms Stuart faced the court-martial and she said I want legal representation.

PN220

JUSTICE ROSS: Yes, I will have a particular person.

PN221

MR HARRINGTON: And I want a particular person. He wasn t that far away, apparently in the court. Anyway, he did not turn up. She got representation, but he was not legally qualified. They were very significant matters of theft of ammunition and the like that were put against her. What Madgwick J said there, was in accordance with the statutory test with which he was dealing, that was a material - I don t think it was material injustice, I can go the case, but.

PN222

JUSTICE ROSS: He was dealing with it some way down the track. He was dealing with the discharge issue.

PN223

MR HARRINGTON: That s right.

PN224

JUSTICE ROSS: The consequence of the finding.

PN225

MR HARRINGTON: If I recall, because I read it last night, that Madgwick J said Anshun did operate in the broad sense, because there were things that were not advanced that should have been advanced, but in dealing - - -

PN226

JUSTICE ROSS: There was an opportunity to put them.

PN227

MR HARRINGTON: Sorry, material irregularity, in looking at the outcome of the, I m pretty certain, the disciplinary process. That s at section 158 1C, paragraph 5 of that decision, which is tab 5 in your folder, page 683. Wherein a review, it appears to review an authority that there was a material irregularity in the course of the proceedings in matters of substantial injustice. Substantial miscarriage of justice has occurred, there s an ability to quash the conviction.

PN228

His Honour engaged with the Anshun estoppel principle and at paragraph 15,

PN229

Before going back to clear the issues that the applicant seeks to agitate in the application were referred to in a general way, but not pressed in the proceedings before Beaumont J.

PN230

JUSTICE ROSS: That s really an illustration of the proposition that they re putting about the interests of justice in a particular case.

PN231

MR HARRINGTON: Correct. Your Honour, we were at Wong and you took me to the top of page 18, paragraph 38 and I don t

PN232

cavil with anything that s put. If one has recourse to that Minister of Immigration decision, there is a listing of bullet points in that particular case of the so-called special circumstances. They operate, it appears, to push the discretion in a particular way which is, look, you didn t raise it, it appears to be unreasonable, but you advanced these circumstances as maybe profoundly compelling reasons why you did not. The discretion then will be exercised in a particular way.

PN233

Can I take the Bench in Wong over to application of the Anshun estoppel at paragraph 48? There s a reference there to the complexity and difficulty in Wong of applying the principles. It goes on to say,

PN234

However, they are questions that Lindgren J had considered it was unreasonable for Mr Wong not to have ventilated in either the first proceeding or the second proceeding. The present question is whether notwithstanding that conclusion by Lindgren J, his Honour erred in permitting Mr Wong to raise those issues for the first time in the revocation refusal proceeding.

PN235

It goes on.

PN236

His Honour found that it was unreasonable for Mr Wong not to have relied on those arguments as to the construction of 503A.

PN237

And it does on.

PN238

Really, what I m taking you to is paragraph 53 across the page on page 20.

PN239

It is arguable that having regard to the outcome that results from applying Anshun estoppel in this case, is the relevant policy consideration. There may be sound reasons of policy for arguing that Anshun estoppel not apply for the benefit of the executive government, and its representatives, but only to individuals. This is because the executive is a respondent by force of statute or of the constitution and is not subject to the same psychological burden that may weigh on individual litigants. They cannot be vexed in the same way by instigation of subsequent proceedings.

PN240

That may be a more appropriate basis, namely that of accepted public policy to ensure that representatives of the executive government cannot rely upon the principle of Anshun estoppel to frustrate in effect, the intended legislative mandate. However, that proposition does not sit well with the authorities that apply the principle of Anshun estoppel equally to judicial review of administrative action.

PN241

And it is footnoted 39 there. In one sense, that s perhaps against my position today because I m representing a - - -

PN242

JUSTICE ROSS: They re saying it s arguable. Did they reach a conclusion?

PN243

MR HARRINGTON: No, it s a comment along the way, if I can put it like that, over the traditional sense. As I went on to read the decision, there s not much more of the decision to go after that. It might be said that they re putting it out there, as it were, that look, it is arguable that maybe the executive or representatives of the crown or the government, don t get the benefit, because the underlying concept of that vexing and psychological burden, a person who is a regulator, or an administrator or who has a statutory right to be heard, may not suffer the same harm.

PN244

DEPUTY PRESIDENT GOSTENCNIK: Isn t there a more concluded view on that question at 66?

PN245

MR HARRINGTON: Sorry. Correct.

PN246

For the reasons indicated above, there is no reason why the doctrine of Anshun estoppel should not be applied to proceedings involving judicial review other than administrative action. The doctrine is based on questions of abuse of process.

PN247

That s how the matter was resolved, so it would appear that although the concept was engaged with by the Bench, it did not manifest as a reason to strike out the Anshun estoppel consideration. What the court there found is that it can apply in respect of the review context in the Federal Court.

PN248

You might say well, you ve taken us to Lambidas, the State Tribunal, you ve taken us to Wong which is dealing with the operation of the principle at a Federal Court or a judicial review level, how is it that a non-chapter 3 court, a Commonwealth Tribunal might be able to utilise this estoppel, because I think - unless, and if I m going off on a tangent, please tell me because I won t address you on it, but I think this is a question that gets raised in this context because if one goes back to Dixon J in Blair v Curran, you might recall that it s often said.

PN249

I ll take you to the decision of Miller v the University of New South Wales the Full Court decision, which my learned friend very helpfully handed up to you. Yes, we re both on the ALR commencing at page 565. Are the members of the Bench aware of what happened in Miller, because there was a number of cases? This one involved the unfair dismissal downstairs. It was dismissed so there was a valid reason for dismissal of Mr Miller from the University of New South Wales. He then, pursuant to section 413 of the Act at the time, went to the Federal Court on the interpretation of the certified agreement for a declaration that the University of New South Wales breached the certified agreement, which dealt with a clause that raised the issue of dismissal or termination for cause or for reason.

PN250

JUSTICE ROSS: One of the issues was whether or not he was a party to the agreement or able to bring those proceedings to, I think. It s probably dealt with in another decision.

PN251

MR HARRINGTON: I read this one again last night and this morning. I m not sure that gets dealt with head on here, but there are a number of Miller decisions. In fact there s another one that I will take you to by Branson J on a different point. If you look down at the head page 565, you will see in the last paragraph.

PN252

The trial judge held that M was estopped from relitigating in the Federal Court the issue of whether there was a valid reason under the certified agreement for the termination of his employment.

PN253

It was said to be an issue estoppel.

PN254

Or alternatively, that M s claims for a declaration gave rise to an abuse of process. The trial judge ordered the Federal Court proceedings be permanently stayed.

PN255

Mr Miller successfully appealed from that, particularly the determination of the issue estoppel. Gray J provides his own set of reasons and you ll see at paragraph 3 on page 567, that the definition given to the issue estoppel by Justices Dixon, Blair and Curran and it goes on quoting that at 531 of that [1939] HCA 23; 62 CLR 464 decision.

PN256

A judicial determination directly involving an issue of fact or law.

PN257

It might be said against me, well you don t have a judicial determination here today, you have a delegate under the legislation in a permit process making a decision. First of all, my response to that is well, we re not dealing with issue estoppel, but I accept that issue estoppel is concerned with judicial determinations.

PN258

Can I take you then to this question at least so far as Gray J addressed it between the constitutional separation of powers and Commonwealth Tribunals versus State Tribunals. Paragraph 9, at page 569.

PN259

It is true that where the constitutional separation of power is not a strict doctrine, it might be possible for a legislature to establish a tribunal lacking all or some of the attributes of a court, but nevertheless, capable of making a binding determination about the rights and obligations arising from the operation of the law upon past events or conducts.

PN260

Examples can be found in administration of the Territory of Papua New Guinea v Dera Guba, which related to a tribunal established in a territory of the Commonwealth and Lambidis, relating to a tribunal in a state.

PN261

The conferral of such a function on a body other than a court by the parliament of the Commonwealth of Australia would be beyond power. It would be necessary to have such a function conferred before a decision of the tribunal could give rise to issue estoppel.

PN262

The point about Miller is it s concerned with issue estoppel. It s not concerned with anshun estoppel. But it touches upon this idea of how can estoppels operate in a Commonwealth statutory tribunal if at all? If I then take you then on to the plurality decision, commencing at paragraph 20 of Ryan and Giles JJ, where there is a detailed history set out over quite a few paragraphs. You will see again that those two judges have reference to Blair v Curran and this is at page 578 under the heading of, Res judicata cause of action estoppel.

PN263

It is noted by the judges that the primary judge was correct in saying there was no res judicata in that case but issue estoppel was an issue, as it were, from paragraph 48 onwards and at paragraph 50 you ll see again a reference to Justice Dixon in Blair v Curran. Then it goes over the page to 51.

PN264

The primary judge considered the question of principle was settled in favour of the respondent by the passage from the decision of Justice Gibbs in Administration of Territory of Papua New Guinea v Derra Guba as follows: 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 of whether such 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.

PN265

That is the High Court dealing with a Commonwealth tribunal in the territories.

PN266

JUSTICE ROSS: Yes, but we don t have jurisdiction to decide a question finally between parties.

PN267

MR HARRINGTON: I agree with that. I agree with that. Can I then take you over to paragraph 56 on page 582? You ll see:

PN268

It s reasonably well established that (leaving aside constitutional considerations in relation to federal legislation) the principles of res judicata whether cause of anshun estoppel or issue estoppel can apply to decisions of parties which are not called courts and which are not courts in the ordinary use of that term.

PN269

Again, I don t think that s particularly unconventional. You ll see down the page Von Doussa J in - this is at 57 - Hatchett v Bow Water Tutt Industries, [1990] 26 Federal Court Reports at 561. You ll see mid-page:

PN270

Earlier a commissioner of the AIRC had decided that the respondent s action in terminating the services of the applicant was not unfair within the meaning of the relevant clause of the award.

PN271

DEPUTY PRESIDENT GOSTENCNIK: Sorry, which paragraph is that?

PN272

MR HARRINGTON: 57, I m on.

PN273

DEPUTY PRESIDENT GOSTENCNIK: Thank you.

PN274

MR HARRINGTON: I m mid-way through.

PN275

The claim for relief in each case was based upon the same facts leaning to what was said to be a contravention of the same clauses of the same award. Von Doussa J held that the AIRC lacked the jurisdiction to ascertain and declare the existing rights of the applicant an in particular to declare whether termination of her employment had occurred in circumstances which contravened the award.

PN276

If I can then take you down to 58, it goes on there:

PN277

The distinction between a power of arbitrary decision and a power of judicial determination makes it readily understandable that in Australian Transport Officers Federation v State Public Services Federation a full court of the Federal Court said, We have considerable doubt whether the principles of estoppel in pay either res judicata, estoppel by cause or issue estoppel apply to proceedings in the Conciliation and Arbitration Commission.

PN278

Some consideration was given to the question in Australian Commonwealth Shipping Board v Federated Seamen s Union Australasia [1925] HCA 27; [1925] 36 CLR 442. In that case a distinction was made between the effect of unreserved decisions of the court exercising judicial power and the then Commonwealth court of conciliation and arbitration exercising powers then regarded and treated as non-judicial.

PN279

So there is some history, if I can put it like that. Can I take you down to 61 of this decision at 583? The application of issue estoppel to decisions of the Commonwealth AAT was expressly left open by the Full Court in Commonwealth v Shiaka, [1988] 17 FCR 476 at 480. It s noted down the page, see the analysis of Pincus, Jane, Bogards v McMahon where his Honour concluded that:

PN280

Based upon Dera Guba, cause of action estoppel may apply to the decisions of the AAT but left open the question of issue estoppel.

PN281

You ll see that this is where it moves into a very complex terrain, members of the bench, about when it might be that an estoppel of any kind operates out of a decision in this tribunal. Your Honour the President said some years ago that issue estoppel did not operate and I ll leave that where it lies, because I m not concerned with issue estoppel today but can I take you over the page to 584, which is most recently the full court in Kowalski v Trustee Mitsubishi Motors.

PN282

DEPUTY PRESIDENT GOSTENCNIK: Which paragraph?

PN283

MR HARRINGTON: This is 584 at the top of the page.

PN284

DEPUTY PRESIDENT GOSTENCNIK: We don t have the pages. We ve got the paragraphs.

PN285

MR HARRINGTON: Sorry. I am - 61, which is a long paragraph, and you ll see there s a reference to Kowalski.

PN286

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN287

MR HARRINGTON: Mansfield J held that:

PN288

The effect of that finding by the full Commission was that the appellant was estopped from challenging its findings in these proceedings. We re not prepared to do so. It is clear that a party would be estopped from arguing that which has already been decided against him or her, even by a different court. This can also extend to decisions by a tribunal where such a tribunal has the capacity to make final and binding decisions.

PN289

You ll see the Derra Guba reference again there. I take you down - well, I ll read on:

PN290

The issue raised in this case is whether there can be any issue estoppel in respect of the determinations of a Commonwealth administrative body. Such bodies cannot exercise the judicial power of the Commonwealth. Can they nevertheless make a determination that is sufficiently final and determinative to give rise to an issue estoppel? There are two chains of authority: the first denies that they can. The relevant cases are discussed by Weinberg J in Branwell Repatriation Commission.

PN291

The second says that they can, particularly where the power being exercised is very similar to judicial power (see Branson J in Miller v University of New South Wales [2002] FCA 882; [2002] 115 IR 404 at 68 to 77.

PN292

This is the decision that the associate most helpfully copied for me this morning and it was handed to you late.

PN293

JUSTICE ROSS: The matter we re looking at, can that be characterised as being very similar to the exercise of judicial power?

PN294

MR HARRINGTON: The issue - - -

PN295

JUSTICE ROSS: The issue of a permit against the set of statutory criteria?

PN296

MR HARRINGTON: You say judicial power. Can I perhaps lift that label and say did it determine a right or entitlement to a person? If you look at the recent MUA decision in the full court of the Federal Court you will see that the issuing of permit is a significant act because it interferes with private property rights and whatever else. That means that the person obtaining the permit is given significant power to enter upon private property so the permit process is a determination of a right to do something, and in this case lawfully interfere with the property rights of third parties. So what I ve picked up there is this power being exercised is very similar to judicial power.

PN297

That s the spring board into the decision of - the other Miller decision, Miller v University of New South Wales, which is volume 115 Industrial Reports 404. It was handed up to you in loose form just this morning and you ll see that the reference from the earlier Miller is to - I think it s paragraph 68 and this is at page 422.

PN298

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 section 170(c)(g) 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 issues.

PN299

69: An authority which at first glance appears to provide support for the argument advanced on Dr Miller s behalf is Hatchet v Bow Water. 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 relitigating the subject matter of the proceeding or alternatively on the ground the proceeding was an abuse of process. After noting at paragraph 28 the jurisdiction of the AIRC was limited to the prevention and settlement of industrial disputes extending beyond the limits of one state, Von Doussa J held that the AIRC lacked jurisdiction to ascertain and declare the existing rights of the applicant.

PN300

It goes on there:

PN301

70: It would be appropriate for me to follow the decision of Von Doussa J in Hatchet s case unless I was satisfied that it were wrong, his Honour s decision being 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 iii of part 6(a) of the Act, under which Dr Miller s application to the AIRC was made.

PN302

I think they were the unfair dismissal provisions of a previous time:

PN303

The jurisdiction exercised by the AIRC under subdivision (b) of the Act is not a jurisdiction with respect to industrial disputes extending beyond the limits of any one state. This is jurisdiction based upon section 5120 of the constitution, as a decision of the full court in this court in Miller 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, determine matters touching on applicants existing legal rights.

PN304

In the circumstances little assistance is gained for the present purposes from the decision in Hatchet s case.

PN305

JUSTICE ROSS: Well, doesn t her Honour reach the conclusion that having regard to the nature of the decision and power being exercised - - -

PN306

MR HARRINGTON: In that context.

PN307

JUSTICE ROSS: - - what was then I think 170 that a legislative intent was to give final rise to a final - subject to appeal - to a final and binding decision in relation to that question and therefore that attracted issue estoppel?

PN308

MR HARRINGTON: Yes, and I think there s another authority - - -

PN309

JUSTICE ROSS: We re not dealing with issue estoppel here, are we?

PN310

MR HARRINGTON: No, we re not. We re dealing with the idea, the concept of an estoppel operating in this tribunal, in a federal tribunal, which unless you can - - -

PN311

JUSTICE ROSS: It s not suggested in that authority that it operates at large. It s suggested that in the context of that unfair dismissal regime there was a legislative intent that the matter be final and determinative - final and binding, subject to appeal, and I think her Honour deals with that at paragraph 77.

PN312

MR HARRINGTON: Yes. That s the remarks of Moore and Blagojevic JJ, I think it was called.

PN313

JUSTICE ROSS: Yes.

PN314

MR HARRINGTON: This remains an unresolved issue, whether issue estoppel can arise as a result of proceedings in the Commission involving the exercise of arbitral power.

PN315

JUSTICE ROSS: Yes.

PN316

MR HARRINGTON: I know we re not dealing with issue estoppel. I m simply putting submissions to the effect that it s unresolved in respect of issue estoppel. That s the authority for that.

PN317

DEPUTY PRESIDENT GOSTENCNIK: It depends. It would seem to depend on the nature of the power that s being exercised.

PN318

MR HARRINGTON: The power, I accept that, and you must look to the grant of power by the Commonwealth to determine whether or not to use the language of the full court in Kowalski v Mitsubishi being exercised is very similar to judicial power.

PN319

DEPUTY PRESIDENT GOSTENCNIK: Okay.

PN320

MR HARRINGTON: The segue I make in the submission is that when one looks to the power to grant a permit that is a determination of the right to hold the permit, therefore that is final and binding in that sense and that anshun estoppels can have traction in respect of the exercise of that power by a Commonwealth tribunal; namely, a non-chapter three court.

PN321

I haven t found any authority like Blair v Curran that says anshun estoppels can only operate in respect of the exercise of judicial power. That is where I was going to get to as well. I might be wrong about that but I have not read anshun estoppel cases that say there must be an exercise of judicial power for the estoppel to operate.

PN322

DEPUTY PRESIDENT GOSTENCNIK: It s more that the cases tend to occur in the context where judicial power - - -

PN323

MR HARRINGTON: Without a doubt - yes, without a doubt. What is also in my submission uncontroversial is that anshun estoppels can and do operate in the ADRR or administrative law context now, I think. Wong stands for that proposition. I think Stuart stands for that proposition. So you can see that there s a development of the principle of anshun in a broad sense and the submission that I make today and is perhaps one of the reasons I got permission to appear is that we make the submission that you ought make a determination that an anshun estoppel can operate in this context - because that s what you re dealing with - in this Commission that the fact of it being - generally exercising arbitral power does not preclude the operation of an anshun estoppel; furthermore, that in the circumstances when you look to the nature of the determination that was made, it was binding.

PN324

I ve dealt with the passage of time submissions and I ve dealt when I took you to the DeRocca case - I ve dealt with Blair v Curran and the two Miller cases. Unless there is any other matter - there is the Christie decision, which of course we have referred to quite extensively in the written submissions so I m not going to read out slabs of Christie to you. I m just trying to find where that is - tab 3 in - that was another issue estoppel case. Let s be clear about that right from the outset.

PN325

It was not an anshun estoppel case and I m very conscious of saying that on the one hand, your Honour is considered in the CFMEU decision, the operation of issue estoppels, I m not here today making submissions about issue estoppels. If I rely too heavily on authorities that start talking about issue estoppels it s rather inconsistent. But Brooking J in that decision gives a very hand history of the development of issue estoppels and why they operate in particular instances. But again, that was a judicial context dealing with a limitation of actions application.

PN326

You ll also see that Brooking J grapples with the idea of which estoppel are we actually dealing with here and I think he lands upon - at about page 597 - that it is in fact an issue estoppel that the court ought to be concerned with rather than raise judicata itself. You ll see that Hayne JJ also at page 599, particularly at line 30, he said:

PN327

Similarly to res judicata or any issue estoppel is necessary to identify whether there has been a final determination as between the parties, in the one case the cause of action and in the other, the particular issue.

PN328

We re not particularly concerned with that and I think you re well aware of those principles. Those are the submissions on behalf of the appellants, thank you.

PN329

JUSTICE ROSS: You ve canvassed in the course of your submissions what you say in response to the written submission that s been filed by the respondent. Is there anything further you wish to say in relation to the written submission that s been filed by the respondent?

PN330

MR HARRINGTON: Not particularly, because the - on the first point that we advanced, the proposition that we advanced about the failure to adjudicate and determine and I know we ve dealt with that, the respondent simply says at about page 12 to paragraph 27, well, his Honour refers to Rogers v the Queen. Therefore he s dealt with it. I think I ve made the submission Rogers is not about anshun estoppel; it deals with issue estoppel. So we are definitely not ad idem on that point. We reject that submission by the respondent.

PN331

I probably should keep my powder dry to a quick reply, depending on how my learned friend puts his - - -

PN332

JUSTICE ROSS: It depends whether we call on him. That s why I m asking you whether you ve got anything to say about the written submission.

PN333

MR HARRINGTON: Beyond that, no, I don t. If you re not going to call upon him and you give me that indication I won t address an authority that he might rely upon. So - - -

PN334

JUSTICE ROSS: We ll see how we go.

PN335

MR HARRINGTON: All right.

PN336

JUSTICE ROSS: Mr Borenstein, we ve had the benefit of reading your written submissions. Many of the issues are joined. Is there anything you wish to say by way of oral reply?

PN337

MR BORENSTEIN: Your Honour, the only matter that I wish to deal with is just to hand up a copy of the case that is referred to in the Christie case. I think it may crystallise the type of proceeding that we re dealing with here and maybe crystallises in authority what the thoughts of - - -

PN338

JUSTICE ROSS: One issue I did want you to deal with which wasn t dealt with in the written submission of the appellant is this question of the characterisation of the decision to grant a permit. You ve heard what Mr Harrington has said about that. He s moved into a - more like a judicial determination and you ve heard what he said about the reference to the MUA case and the interference with common law rights.

PN339

MR BORENSTEIN: Well, I would say that the process and what the tribunal has done in providing a permit is not - especially in the first application at the very least - is not (indistinct), and in a judicial way and in terms of exercising judicial power. In terms of what delegate Enright did in the first application was - which was what was the usual process - was received the declaration, received the application, submissions were filed and issued his decision.

PN340

There was no, we submit - and it was raised with delegate Enright as well - that there is no power for the delegate to hold a hearing. He doesn t have the power under section - - -

PN341

JUSTICE ROSS: He wasn t delegated the power to hold a hearing.

PN342

MR BORENSTEIN: That s true - under section 625. So to say that a tribunal exercising judicial power in a situation where they have no power to hold a hearing, I think really resolves that issue, in my submission. If I could just - there was a principle - not that it s exactly on point but at tab seven in Lam Begas, page 324, we would submit that at letter C down the page at 324 that what occurred in the first application before delegate Enright maybe not on all points but is more - fits into the provision there which talks about:

PN343

Thus it could scarcely be expected that a tribunal composed of temporary lay appointees

PN344

We note that delegate Enright is not a Fair Work Commission member but is an employee of the Fair Work Commission.

PN345

JUSTICE ROSS: Mr Borenstein, that discussion occurs in the context of issue estoppel.

PN346

MR BORENSTEIN: Yes. We would say that it does but in terms of looking at the broader policy consideration, where in the end the Commission is looking at has its processes been brought into disrepute and is it unreasonable for the fact that the applicant hasn t brought a matter before it previously that it should have or is it unreasonable that it didn t? The fact that this proceeding was dealt with in a somewhat informal way, not your usual judicial way where there are pleadings and claims and a hearing conducted and witness statements put on and cross-examination and the like. We would submit that it falls on the policy question. It s not the exercising of judicial power but rather, it has been a quite informal procedure at first application and we say therefore it would be unreasonable for the anshun estoppel principle to be applied to the applicant at first application.

PN347

Something that just probably puts this application in context, if I could just hand up a decision? This is the unreported decision of Crowther v Potterall.

PN348

DEPUTY PRESIDENT GOSTENCNIK: Have you got a copy of that, Mr Harrington?

PN349

MR HARRINGTON: I ve got a copy, thank you.

PN350

MR BORENSTEIN: This is a decision that Brooking J refers to in the decision provided by that justice in Christie. If I could take you to page 10 of that decision, this decision goes to this concept that with a permit application you re not dealing with a set of circumstances that stay the same. A cause of action like - whether it be an unfair dismissal or a breach of contract where the circumstances are, in effect, set. At page 10 halfway down it says:

PN351

In reliance on that decision the court of appeal in Burman v Woods held that the principle of res judicata did not prevent a landlord from seeking to recover possession of a house on the footing that greater hardship would be caused by refusing him possession than by giving it.

PN352

Then Somervell LJ said at page 112:

PN353

The court has to direct is mind to the date of the proceedings and the evidence which adheres at the time and clearly that is the date on which the order is drawn up. But it is plain that the relevant facts with regard to hardship may alter at any time.

PN354

We say that s exactly the same with the situation of the fit and proper person test as was alluded to by the Commissioner.

PN355

DEPUTY PRESIDENT GOSTENCNIK: So this is an elaboration of the argument in your written submission that - - -

PN356

MR BORENSTEIN: Yes.

PN357

DEPUTY PRESIDENT GOSTENCNIK: - - that you draw a distinction between static proceedings, which is estoppels of various types apply to, including anshun - - -

PN358

MR BORENSTEIN: Yes, that s correct.

PN359

DEPUTY PRESIDENT GOSTENCNIK: - - and this is not such a case.

PN360

MR BORENSTEIN: Exactly right.

PN361

DEPUTY PRESIDENT GOSTENCNIK: It s put against you that whilst the passage of time and other events might be relevant it has to reach a point of materiality.

PN362

MR BORENSTEIN: We submit that that s not based on any authority and we submit that it has to - - -

PN363

JUSTICE ROSS: Well, what about the proposition if someone comes along, applies for a permit on one day, is refused the permit and makes the same application the next day?

PN364

MR BORENSTEIN: Well, we would say - well, that would obviously be a situation where the cases are significantly the same. The courts say that it has to be in effect the same and we say that in this situation we have a significant period of time, being 12 months, of difference and that s the distinguishing factor.

PN365

JUSTICE ROSS: Yes.

PN366

MR BORENSTEIN: I accept that in a lot of proceedings the Commission would be wary of receiving an application where there s only one day s difference, whether it be an unfair dismissal, whether it be - there s a question that the Vice President raised in respect of 418 orders.

PN367

DEPUTY PRESIDENT GOSTENCNIK: It wouldn t be an unfair dismissal because there are provisions in the Act that deal with multiple proceedings, which rather - which might also tell against the operation of anshun estoppel. We have specific statutory provisions which create a statutory bar to taking multiple proceedings. Why would you need such a thing if anshun estoppel operated?

PN368

MR BORENSTEIN: I m happy to adopt that submission, your Honour, and it is - - -

PN369

DEPUTY PRESIDENT GOSTENCNIK: I wasn t making it as a submission.

PN370

MR BORENSTEIN: It is also - the adoption of that principle - - -

PN371

DEPUTY PRESIDENT GOSTENCNIK: I was really putting it in response to your proposition that if they came along the next day and had another unfair dismissal application, well, they can t. Or you can t take an unfair dismissal and a different type of proceeding in another jurisdiction, et cetera.

PN372

MR BORENSTEIN: That s correct, but it s obviously a matter of degree. There is a matter of degree in it and I think the courts do accept that but it is a high threshold for someone to lock someone out of a proceeding and a situation where you only have a day s difference would obviously maybe favour a degree of reaching the ground of an abuse of process.

PN373

DEPUTY PRESIDENT GOSTENCNIK: Mr Harrington is not putting that you re locked out. He s not putting it as a permanent stay. He s putting it as - you have to reach a point where there s a material difference in the nature of the case you would be advancing as opposed to the case it was open to you to advance in the earlier proceedings.

PN374

MR BORENSTEIN: Well, we would submit that there is a material difference between a proceedings - what degree - - -

PN375

DEPUTY PRESIDENT GOSTENCNIK: I understand, yes.

PN376

MR BORENSTEIN: In terms of the hardship point - - -

PN377

JUSTICE ROSS: But, Mr Borenstein, what in fact is the material difference? It seems - at least on the fact of the Vice President s decision - that a significant factor in his thinking was the evidence given by Mr Mooney about his attitude to compliance with industrial laws. It was open for him to say that in a statement to the delegate, wasn t it?

PN378

MR BORENSTEIN: Well - - -

PN379

JUSTICE ROSS: There s no evidence that he had some vision on the road to Damascus between the decision of the delegate and the proceeding before the Vice President to cause him to change his mind.

PN380

MR BORENSTEIN: Well, the question of whether it s open or not - - -

PN381

JUSTICE ROSS: That s really Mr Harrington s point: if it was open, then it should have been put then.

PN382

DEPUTY PRESIDENT GOSTENCNIK: I suppose he couldn t have been cross-examined then.

PN383

MR BORENSTEIN: No, so the material - the weight of the evidence - I mean, that s the problem we faced in that the first application was a - was done in quite an informal way and in terms of the usual way, which was you just make the application. The decision was received that obviously we didn t appreciate and we appealed that and we lost. But we would say that our conduct in the first application wasn t unreasonable, based on the existing procedures of the Commission. Now, that s one factor that goes to anshun estoppel and why it shouldn t apply.

PN384

In terms of the differences between the two proceedings we say there is significant difference between the two proceedings and the differences are there was this 12 months where Mr Mooney was performing his role, was performing his job, was entering sites and servicing the members and didn t contravene any further laws. We say that s a material difference. 12 months of good behaviour is a different fact that obviously couldn t have been brought in the first application and was relevant to this situation.

PN385

If you relate that to the hardship question that s dealt with in the case I just handed up, the question of whether someone is suffering hardship depends on where you draw the line. We might just be at 49 per cent but you still fail. You have to get over 50 per cent. Does it mean that if that one little fact changes but that gets you over the 50 per cent mark to get you the hardship, and winning your case, we would say that s all that s required to justify further proceedings. The circ7umstances have changed; it might only be one per cent but that can be significant enough to get you over the line.

PN386

So the same here is that it may well be - I mean, whether someone is a fit and proper person is things all go in the pot and someone makes a discretionary decision about whether they think they re fit and proper. We submit that that extra 12 months of good behaviour may have been the thing that got Mr Mooney over the line, and the differences. So we submit that when someone says, Is there a material difference, we obviously say there is a material difference and that material difference might be one per cent, it might be 10 per cent.

PN387

But in this case I think you can be safely assured that there is a difference between the facts that were before the first application and the second application that those facts were ones that came into existence after the first application. I think - and I ve made that point - that obviously the first application was not I suppose a formal process in which evidence was called for and a hearing was conducted and obviously that s an extra factor. That was in the second application.

PN388

We say it wasn t unreasonable for us to have not brought this in the first application, based on the procedure that occurred there. Another I suppose issue that did arise in terms of the passage-of-time submission and the like was that at the time of Mr Mooney s application the issue of whether or not contraventions that weren t right-of-entry related were matters that were relevant to the discretion of the right-of-entry permit, obviously subsequent to those submissions being done. I believe there have been three or four full bench decisions that have upheld that you can look at contraventions that are non-right-of-entry related.

PN389

Unless there s anything further for the Commission - - -

PN390

JUSTICE ROSS: No, thanks, Mr Borenstein.

PN391

MR HARRINGTON: Just quickly, just on the way in which the delegate conducted the so-called investigation or hearing - not that it was a hearing - but the consideration at paragraph 5 of that decision at court book 267 - - -

PN392

JUSTICE ROSS: Sorry, which decision?

PN393

MR HARRINGTON: That is the delegate s - Mr Enright s decision - - -

PN394

JUSTICE ROSS: Yes.

PN395

MR HARRINGTON: - - in April and I m referring to page 2 of the decision at paragraph 5. He simply notes that:

PN396

The Commission wrote to the CEPU noting my concerns regarding Mr Mooney s status as a fit and proper person given the number of matters disclosed in schedule one appended to the application and invited the CEPU to make any submissions it wished to make in the present matter regarding Mr Mooney s conduct in each matter, addressing each of the permit qualification matters.

PN397

So there was that opportunity was given by the person delegated the power to determine the question. On that question - - -

PN398

JUSTICE ROSS: The opportunity to provide further submissions directed at his concerns?

PN399

MR HARRINGTON: Yes.

PN400

JUSTICE ROSS: Yes. I think the point that s made by Mr Borenstein is the delegate had no power to conduct a hearing; had no power because it wasn t delegated to him.

PN401

MR HARRINGTON: I might be on the back foot on that because section 625 - unless I ve missed it in my reading - doesn t seem to - I was going to say doesn t seem to exclude but what it says is, Delegation by the president of functions and powers - it says - - -

PN402

JUSTICE ROSS: He wasn t delegated - because I did the delegations - he wasn t delegated the function or power to conduct a hearing.

PN403

MR HARRINGTON: Okay, all right.

PN404

JUSTICE ROSS: That s what s led to the change in practice and it came about probably triggered by that HSU litigation where the delegate put some HSU officials on notice that he might find - make adverse findings about their conduct and they wanted to be heard on it and certainly the delegate then put the view to me - and this is explained in the transfer of the proceedings to Vice President Watson - that he didn t have the power to conduct a hearing.

PN405

There is no doubt that the practice previously to that event - - -

PN406

MR HARRINGTON: I accept that.

PN407

JUSTICE ROSS: - - that governed this was he didn t conduct a hearing, whether strictly he could have.

PN408

MR HARRINGTON: I think under 625 the delegation of power to conduct a hearing can be made. That s the simple point that - - -

PN409

JUSTICE ROSS: I know, it certainly can be, but the point is it wasn t, yes.

PN410

MR HARRINGTON: Yes, I accept that. There was just in terms of the submission I made earlier about that MUA case, where I made a broad submission in respect of when you grant an entry permit what happens or what is the effect of that and I m referring to MUA v Fair Work Commission [2015] FCA FC 56 and I m taking you to paragraph 14.

PN411

JUSTICE ROSS: Yes.

PN412

MR HARRINGTON: Quote:

PN413

A person granted an entry permit is conferred extensive power. Entry permits confer rights which significant erode the common law right of occupiers to exclude those to whom they do not wish to grant entry

PN414

and it goes on.

PN415

JUSTICE ROSS: Yes.

PN416

MR HARRINGTON: That s what I was referring to. Just finally, the Crowther decision that my learned friend took you to, this decision only deals with issue estoppel and res judicata. There is a mention - to be fair there is a mention on page 3 of the copy I ve got which is Fullagar J mentions anshun, Henderson v Anshun, but says, I will not set out the passage from Anshun here. I just don t think anshun was pressed in that particular context. Ultimately, Brooking J referred to the unsuccessful invocation of issue estoppel, not res judicata, but the approach of the court still appropriate towards the end of the decision.

PN417

So it may assist my learned friend in certain ways but it wasn t dealing with anshun estoppel.

PN418

JUSTICE ROSS: No, it s not directly on point, but he s referring to it by way of analogy about this reference to the static circumstances and the like, in the same way as you ve sought to rely on issue estoppel cases to support your point.

PN419

MR HARRINGTON: Exactly, that s right, and the concept of it being ambulatory in nature, that the section you looked at - you looked at the section and understand what is the legislator requiring of the decision-maker in the circumstances? Those are the reply submissions, thank you.

PN420

JUSTICE ROSS: Thanks, Mr Harrington. Nothing further? Thank you for your submissions. We ll adjourn and reserve.

ADJOURNED INDEFINITELY [11.40 AM]