Supreme Court New South Wales Medium Neutral Citation: Washington H Soul Pattinson & Company Limited v Roderick [2020] NSWSC 1225 Hearing dates: 1, 4, 5, 6 and 7 May 2020 Date of orders: 10 September 2020 Decision date: 10 September 2020 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) The plaintiffs' summons is dismissed. (2) I order the first plaintiff to pay the defendant's costs on the summons. Catchwords: CIVIL PROCEDURE — Pleadings — Where leave granted to defendant in related proceedings in this Court to withdraw claim for redundancy — Where defendant commenced proceedings in Federal Circuit Court seeking redundancy payment — Anti-suit injunction — Whether new claim has no merit — Whether vexatious and oppressive or with purpose of frustrating or obstructing proceedings in this Court — Nature of claim Legislation Cited: Fair Work Act 2009 (Cth), ss 44, 119, 546, 550 Cases Cited: CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 Midland Bank PLC v Laker Airways Ltd. [1986] QB 689 NAB v Idoport [2002] NSWSC 623 Turner v Grovit [2002] 1 WLR 107 Category: Procedural and other rulings Parties: Washington H Soul Pattinson & Company Limited (First Plaintiff) Robert Dobson Millner (Second Plaintiff) Robert Gordon Westphal (Third Plaintiff) Warwick Martin Negus (Fourth Plaintiff) Todd James Barlow (Fifth Plaintiff) Thomas Charles Dobson Millner (Sixth Plaintiff) Melinda Rose Roderick (Defendant) Representation: Counsel: D Sulan with J Entwisle (Plaintiffs) G McNally SC with D Stewart (Defendant) Solicitors: Baker McKenzie (Plaintiffs) Gillis Delaney Lawyers (Defendant) File Number(s): 2020/262431 Publication restriction: None Judgment 1. This is the judgment in respect of the summons that I granted leave to the plaintiff ("WHSP") and five other persons being the directors of WHSP to file in Court on 6 May 2020. This judgment should be read in conjunction with the principal judgment (Roderick v Washington H Soul Pattinson & Company Limited (No 2) [2020] NSWSC 1224) and assumes a familiarity with the principal judgment. In the related proceedings, WHSP is the defendant and the defendant in these proceedings is the plaintiff ("Ms Roderick"). She seeks damages from WHSP following the termination of her employment. 2. This judgment is in respect of an application for an anti-suit injunction arising out of Ms Roderick's withdrawal of her claim for redundancy payments in this Court and commencement of a statutory claim for redundancy in the Federal Circuit Court. I set out the background to this application below. 3. On 24 April 2020, Ms Roderick served an outline of her opening submissions, indicating that she did not press any claim for redundancy. By email dated 24 April 2020, she gave notice that she would formally seek leave to delete the claims for relief for redundancy from the pleadings and particulars relating to redundancy on commencement of the hearing. The reason that she determined to do that was that on that day, being 24 April 2020, she commenced proceedings in the Federal Circuit Court against not only WHSP in the related proceedings but also against the five directors. 4. As set out in the statement of claim filed in the Federal Circuit Court, Ms Roderick seeks a redundancy payment pursuant to s 119(1)(a) of the Fair Work Act 2009 (Cth) ("FW Act"). 5. She asserts that, as WHSP did not pay a redundancy payment within the meaning of s 119(2) of the FW Act, it was in contravention of s 119 of the FW Act. 6. Ms Roderick asserts that s 119 is the provision of the National Employment Standards for the purposes of the FW Act and s 44(1) of the FW Act is a civil remedy provision. Further, she also seeks an order that WHSP pay a pecuniary penalty, having regard to s 546(1) of the FW Act. 7. In addition to the claim against WHSP, Ms Roderick says that each of the directors were responsible for ensuring that WHSP complied with the FW Act in relation to her entitlements arising under the FW Act and the general law. 8. It is alleged that the directors failed to ensure that the redundancy payment was paid in a timely manner or at all. Ms Roderick pleads that each of the directors were involved in contraventions by WHSP and that, by operation of s 550(1) of the FW Act, each of the directors is taken to have personally contravened the provisions. Ms Roderick thus seeks an order for the redundancy payment as well as the imposition of pecuniary penalties. 9. Each of WHSP and the directors will be defending those proceedings in the Federal Circuit Court. 10. By way of this summons, WHSP and the directors seek orders in the nature of an anti-suit injunction. They seek orders that: 1. Ms Roderick take all necessary steps forthwith to discontinue the claims against each of the parties in the Federal Circuit Court; and 2. Ms Roderick be restrained until further order from taking any step in the Federal Circuit Court proceedings. 1. In support of its summons, WHSP relies on affidavits from its solicitor, Ben Burke, who is a partner at Baker & McKenzie. Mr Burke refers to the pleadings in Ms Roderick's original statement of claim seeking a payment for redundancy and to the correspondence of 24 April 2020 giving notice of the withdrawal of the redundancy claim and the commencement of the Federal Circuit Court proceedings. 2. Plainly, WHSP objects to the course taken by Ms Roderick. 3. Ms Roderick was cross-examined on matters relevant to WHSP's summons, in particular as to her belief as to WHSP's capacity to pay any judgment in these proceedings, the value of her redundancy claim and why she gave instructions to join the directors in the Federal Circuit Court proceedings. 4. Other than establishing that Ms Roderick must have known that WHSP had the capacity to pay a judgment in this Court and that the decision to pursue the proceedings in the Federal Circuit Court was on the advice of her lawyers (although, as Mr Sulan points out, the nature of that advice was not disclosed), it does not seem to me that any statements made by Ms Roderick about those proceedings have any bearing on the outcome of WHSP's summons. 5. The parties provided helpful written submissions. WHSP submits that the Court should grant the relief sought to protect the integrity of its processes and prevent the unconscionable exercise by Ms Roderick of her legal rights. 6. WHSP submits that the Federal Circuit Court proceedings have a tendency to interfere with these proceedings or, alternatively, are vexatious and oppressive and should be restrained because: 1. The claim that Ms Roderick was made redundant is without merit and has low prospects of success in any jurisdiction. 2. Ms Roderick was advised by solicitors with professed experience in employment law. It ought to be inferred that the choice of forum and cause of action pursued in these proceedings was done on a properly informed basis and that her legal advisors were well aware of the availability of other statutory causes of action which she now seeks to advance. 3. Ms Roderick had previously been content to sue for recovery of the alleged redundancy payments in these proceedings but she now seeks declarations of contravention of the FW Act and the imposition of pecuniary penalties against the directors personally. It is said that there was no proper justification to join the directors or reason advanced why it was considered necessary, other than because it was strategically useful for Ms Roderick. It is said that the decision to join the directors is even more egregious in circumstances where Ms Roderick was aware that two of the named directors are potential witnesses in these proceedings. 1. The second ground that WHSP advances is that the bringing of the claim for redundancy in these proceedings gives rise to an estoppel by conduct. It is said that it would be unconscionable for Ms Roderick to be now permitted to bring fresh proceedings on the same facts agitating the same issues concerning the termination of her employment in another forum. 2. In response, Ms Roderick accepts that her claim in contract for redundancy and severance payment in this Court is difficult but says that the prospects for success for a statutory redundancy claim in the Federal Circuit Court are good. Further, she agrees with WHSP that this Court does not have jurisdiction to determine the claims she pursues in the Federal Circuit Court under the FW Act. 3. Put simply, Ms Roderick says that the claim pursued in this Court was a claim in contract. She accepts that there might have been difficulty succeeding in the claim in this Court but maintains that she has a good claim for the statutory entitlement which can only be pursued in the Federal Circuit Court. 4. She emphasises that notice and severance are separate concepts. A general period of notice is allowed so that the employer may find a comparable job, whereas a severance or redundancy payment is to compensate the employer for the loss of service. 5. Ms Roderick accepts that it would have been difficult to establish that the entitlement to a redundancy payment was implied into the contract of employment. However, to succeed in her claim under the FW Act, Ms Roderick says that she need only establish that WHSP did not appoint a new Finance Director. The appointment of a new CFO meant that only part of her job was being performed. She says this will entitle her to a redundancy payment under the FW Act. 6. She says that there was no entitlement to join the directors to the proceedings in this Court in respect of her redundancy claim but that she is entitled to join the directors in the Federal Circuit Court. She says that the pecuniary penalty provisions in the FW Act are intended to act as a deterrent to prevent breaches of statutory protections for employees. Additionally, Ms Roderick can claim that all of the pecuniary penalties or part thereof be paid to her. 7. It is not necessary that I determine the merits of the claim for redundancy which was formerly pursued in these proceedings. Ms Roderick concedes that such a claim would have been difficult. 8. Nor is it necessary that I determine the strength of her claims in the Federal Circuit Court, unless I am able to be satisfied that they are of no merit at all. She says that her prospects are good. WHSP says there is no merit at all in her claim. 9. I do not consider that I can determine WHSP's summons based on the proposition that there is no merit at all in her Federal Circuit Court claim. That is not to say that I accept that there is any merit in the claim, but I am unable to determine what the outcome of that claim might be at this time. 10. It is puzzling that Ms Roderick has chosen to commence proceedings in the Federal Circuit Court a week before the commencement of the hearing of these proceedings, but she says it was done on advice. WHSP may believe it was done for improper purposes but I am not prepared to make that finding without evidence to support the proposition. No such evidence emerged through cross-examination of Ms Roderick. 11. It might be surprising that, if there is any merit in Ms Roderick's Federal Circuit Court claim, it was not considered and acted upon at some earlier stage. The joinder of directors to establish a personal liability was hardly a conciliatory move but, again, Mr McNally submits that there is potential for Ms Roderick actually to recover some amount awarded by way of penalties herself. No doubt if Ms Roderick is wrong about all this, she will be subject to costs orders. 12. The parties are not in dispute as to the principles to be applied on such an application. As WHSP says, the question in each case is whether the moving party has established an equity sufficient to attract the intervention of the Court and thereby interfere with the legal rights of the other party to continue proceedings in another Court. 13. Ms Roderick did not submit that this Court did not have the power to protect its own processes or the power to restrain unconscionable conduct and restrain the pursuit of vexatious and oppressive proceedings. Further, Ms Roderick did not dispute the examples relied upon by WHSP, such as: 1. where a plaintiff has commenced proceedings in another jurisdiction and there is nothing that can be gained in those proceedings over and above what may be gained in the current proceedings; [1] or 2. where the bringing of proceedings with respect to one claim is properly to be seen as election not to proceed on another claim; [2] or 3. where a plaintiff has, in bad faith, commenced and proposes to prosecute the proceedings in another jurisdiction for the purposes of frustrating or obstructing the proceedings or to put blackmailing pressure on a defendant. [3] 1. However, the problem for WHSP is not so much the principles which might be applied but the application of principle on the facts which have been established. For example, there is no evidence that Ms Roderick has commenced the Federal Circuit Court proceedings for the purposes of frustrating or obstructing the conclusion of the proceedings in the Supreme Court. Despite the suspicions of WHSP, there is no evidence that Ms Roderick has commenced proceedings in the Federal Circuit Court as some sort of strategic manoeuvre to blackmail WHSP into settling the case. Obviously, WHSP did not settle the case. There is no correspondence from the solicitors for Ms Roderick suggesting that in some way, if WHSP settled the case, it would not pursue the Federal Circuit Court proceedings. 2. Further, this is not a case in which Ms Roderick would have obtained the same benefit from pursuing these proceedings as she may from the Federal Circuit Court proceedings. That is because one is a statutory claim. Ms Roderick need only to establish her entitlement based on the provisions of the statute, rather than rely on common law principles. The test is different. 3. Equitable estoppel does not arise as Ms Roderick is not agitating the same issues in the new proceedings. She is pursuing a statutory entitlement which is not available to her in this Court. There has been no election by her not to pursue any statutory entitlement. The fact that the idea seemingly came to her or those that advised her late would not, of itself, be sufficient to ground an estoppel. 4. The situation would be different if this Court had the jurisdiction to entertain the claim under the FW Act. The parties agree it does not. Further, a Court would not ordinarily find that a person's conduct was unconscionable, merely because she is pursuing proceedings seeking enforcement of her right or entitlement at a late stage, having seemingly been advised that another jurisdiction is the proper place to pursue such a claim. 5. If there is a limitation period on which WHSP can rely, no doubt it will. If there are steps which WHSP can take in the Federal Circuit Court to dispose of the proceedings on a preliminary basis, no doubt it will take those steps. 6. The lateness of the new claim in the Federal Circuit Court might be of concern and might be viewed as contrary to the expeditious and efficient resolution of all issues between the parties but I do not consider that I should restrain Ms Roderick from pursuing proceedings in the Federal Circuit Court on suspicion. 7. In the circumstances, it does not seem to me that, on the available evidence, WHSP has established an entitlement to the orders sought. The outcome may have been different if WHSP had established that the claim could have no merit and that it was being pursued for an improper purpose or motive or that the pursuit of that claim in another jurisdiction would interfere with the processes of this Court. 8. WHSP has not established those matters. Again, as is apparent from the conduct of the hearing in this Court, the pursuit of the proceedings in the Federal Circuit Court did not interfere with the processes of this Court. 9. Having regard to discussions at the end of the hearing, I understand that Ms Roderick would not be seeking to progress the Federal Circuit Court proceedings until delivery of my judgment. 10. Ultimately, the matters of concern raised by WHSP will be dealt with by way of costs orders. That is the risk that any party takes in pursuing or defending litigation. I do not consider that I should make an order restraining Ms Roderick from pursuing a claim for a statutory payment which this Court does not have the power to determine. 11. In the circumstances, the summons is dismissed. I order WHSP to pay Ms Roderick's costs on the summons. 12. I grant leave to apply on three days' notice if any party seeks a variation on that costs order. ********** Endnotes 1. CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 393. 2. CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 394. 3. NAB v Idoport [2002] NSWSC 623 at [17] (citing the House of Lords in Turner v Grovit [2002] 1 WLR 107); Midland Bank PLC v Laker Airways Ltd. [1986] QB 689. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2020