Horsman v Commissioner of Main Roads [1999] FCA 406

FEDERAL COURT OF AUSTRALIA

Horsman v Commissioner of Main Roads [1999] FCA 406 INDUSTRIAL LAW – Industrial Relations Commission proceeding – undertakings by parties not to pursue proceedings in Court or Tribunal - undertaking by applicant to party to be bound by outcome - whether proceedings in Commission a private arbitration – functions exercised by Commissioner – whether agreement as to private arbitration – whether issue estoppel arises out of conciliation – whether estoppelby conduct arises. Industrial Relations Act 1988 (Cth), s100, 101, 111 Commonwealth v Verwayen (1990) 170 CLR 394, discussed Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, applied National Union of Workers v Pacific Dunlop Tyres Pty Ltd (1992) 37 FCR 419, applied BARRY STANLEY HORSMAN v COMMISSIONER OF MAIN ROADS W 111 OF 1997

R D NICHOLSON J 13 APRIL 1999 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 111 OF 1997

BETWEEN: BARRY STANLEY HORSMAN

Applicant

AND: COMMISSIONER OF MAIN ROADS

Respondent

JUDGE: R D NICHOLSON J

DATE OF ORDER: 13 APRIL 1999

WHERE MADE: PERTH

THE COURT ORDERS THAT: Counsel be heard as to the appropriate form of orders. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 111 OF 1997

BETWEEN: BARRY STANLEY HORSMAN

Applicant

AND: COMMISSIONER OF MAIN ROADS

Respondent

JUDGE: R D NICHOLSON J

DATE: 13 APRIL 1999

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant was formerly employed by the respondent under a Federal award as a plant operator instructor from 21 May 1990. He alleges that on 7 October 1992 the respondent dismissed him, the dismissal was in breach of the terms of his contract and was harsh, unjust or unreasonable. The applicant claims penalties for breach of an award and damages. 2 On 14 September 1998 French J delivered reasons for judgment in respect of three preliminary questions. The third one was: "(3) Having regard to the Australian Industrial Relations Commission decision of Commissioner Laing in Australian Workers' Union v Main Roads Department delivered on 6 November 1992 in which it was held that the Respondent had not acted harshly, unjustly or unfairly in terminating the Applicant's employment, is this matter: (a) res judicata, and/or (b) subject to issue estoppel? " When this preliminary issue came on for hearing before French J counsel for the respondent advised that reliance would not be placed on res judicata or issue estoppel but rather estoppel by conduct or agreement. French J ruled that none of the preliminary questions, including the preliminary issue addressing only res judicata or issue estoppel, should be separately tried and the matter should go to hearing. 3 The respondent then amended his reply so as to rely upon the decision of Commissioner Laing as having determined the issues so that, by application of the doctrine of issue estoppel by conduct or agreement, it is not open to the applicant to argue to the contrary. 4 The hearing commenced on 15 December 1998. Counsel for the respondent thereupon raised the question whether the new plea of estoppel should be dealt with as a preliminary issue. He contended that there was no factual dispute that an agreement had been reached; the only question was a legal one as to the effect of that agreement. Counsel for the applicant disputed the existence of an agreement. It was then agreed between counsel that, as the trial would be a lengthy one, it would be appropriate for the new issues of estoppel to be dealt with as a preliminary issue.