Industrial Relations Commission New South Wales Medium Neutral Citation: Cheron Transport Pty Limited v Toll Transport Pty Limited [2011] NSWIRComm 1021 Hearing dates: 28 April, 2011 Decision date: 28 April 2011 Jurisdiction: Industrial Relations Commission Before: Connor C Decision: Application for reinstatement of a contract of carriage dismissed but the right to seek the reconvening of the matter in six months permitted Catchwords: TERMINATION OF A CONTRACT OF CARRIAGE - transport industry - contract driver - application for reinstatement of contract - claim made independently to the Anti-Discrimination Board - issue of res judicata and possible abuse of process discussed - application dismissed but right to seek the reconvening of the proceedings within six months authorised Legislation Cited: Industrial Relations Act 1996 Cases Cited: Henderson v Henderson (1843) 67 ER 313 Port of Melbourne Authority v Anshun Pty Limited (1980) 147 CLR 589 Yat Tung Investment Company Limited v Dao Heng Bank Limited (1975) AC 581 Category: Principal judgment Parties: Cheron Transport Pty Limited (applicant) Toll Transport Pty Limited (respondent) Representation: Elizabeth Larbalestier, Transport Workers' Union of New South Wales Ben Gee, Fisher Cartwright Berriman Pty Limited File Number(s): IRC 828 and 1009 of 2010 DECISION 1Pursuant to the provisions of Part 4, Dispute Resolution, of Chapter 6, Public Vehicles and Carriers [s.314], of the Industrial Relations Act 1996 the Transport Workers' Union of New South Wales has lodged an application on behalf of its member, Mr Ronnie Leibeck, who trades as Cheron Transport Pty Limited. Mr Leibeck was engaged for two years under a contract of carriage with Toll Transport Pty Limited, trading as Toll Logistics - Toll Coca Cola. He was engaged under the terms of the Transport Industry - General Carriers Contract Determination and the Toll Contract Carriers Agreement. He has not been provided with any work since Wednesday, 30 June, 2010 and the TWU asserted that the effective termination of his contract of carriage was harsh, unreasonable and unjust and that he is suffering financial hardship from the cancellation of his contract with Toll. The TWU seeks the reinstatement of that contract of carriage. 2The TWU had earlier lodged a notification of an industrial dispute with Toll under s.332. That matter was the subject of the conference required by s.315 on Friday, 27 August, 2010 and adjourned until Thursday, 23 September, 2010. It was convenient for the current s.314 application the TWU lodged on behalf of Mr Leibeck to also be listed for mention and programming on Thursday, 23 September, 2010, Thursday, 11 November, 2010, Thursday, 18 November, 2010 and Thursday, 16 December, 2010. 3Mr Leibeck has an indigenous background. On Wednesday, 30 June, 2010 he made a complaint to Toll management of racial taunts and comments he had received from Toll employees and other contract drivers but Toll claims that the continuation of his suspension arose from threats he had himself made to a Toll employee on Thursday, 5 August, 2010. Mr Leibeck denies that he made any such threats. 4Independently, through a solicitor (and apparently against the advice of the TWU), Mr Leibeck has lodged an application before the Anti-Discrimination Board. I have indicated that I am not prepared to proceed with the matter before me until he has resolved how he is to progress with his matter before the ADB. The TWU, with the consent of Toll, sought a further adjournment of the matter to await the outcome of the ADB proceedings and I set it down for further mention on Thursday, 3 February, 2010, Thursday, 14 April, 2011 and Thursday, 28 April, 2011. 5Mr Gee , representing Toll in the proceedings, had in the proceedings before me on Thursday, 14 April, 2011, submitted that I should dismiss the matter before me as it was not being progressed in the light of the unresolved ADB application. I declined to dismiss the matter at that time but indicated to Ms Larbalestier , representing the TWU in the proceedings, that I would consider that application again when the matter resumed before me on Thursday, 28 April, 2011. 6When the matter resumed before me on Thursday, 28 April, 2011 Mr Gee pressed his application to dismiss the matter. Ms Larbalestier indicated that she had spoken to Mr Leibeck and he had still indicated his intention to proceed with both his application before me under Chapter 6 and his claim in the ADB. But should he be permitted to pursue both claims independently? I do not believe so. 7It is not altogether clear to Ms Larbalestier whether the claim before me under Chapter 6 and before the ADB cover the same territory: I expect that it does. If any matter in dispute is resolved or dealt with in earlier proceedings and raised again in subsequent proceedings, not only does that raise the question of res judicata but it may, in fact, become an abuse of process. A party may indeed be estopped from doing so [ Port of Melbourne Authority v Anshun Pty Limited (1980) 147 CLR 589]. So the outcome of the proceedings in the ADB may leave the TWU little to effectively argue in the subsequent Chapter 6 proceedings. In Yat Tung Investment Company Limited v Dao Heng Bank Limited (1975) AC 581 at p.590, for instance, the Privy Council commented that: "...there is a wider sense in which the doctrine of res judicata may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings..." 8Where a matter becomes the subject of litigation, it is required that the parties to that litigation bring forward the whole of their case and it is not, except in special circumstances, permissible to later open up the same subject matter, or matters which properly could have been brought forward in he earlier proceedings, in subsequent proceedings. Pleas of res judicata apply not only to points upon which a court forms an opinion but to every point which properly belonged to the subject of the litigation and which the parties, exercising reasonable diligence, might have brought forward at the time [ Henderson v Henderson (1843) 67 ER 313 at p.319]. 9It is in those circumstances that I propose to accede to Mr Gee's application and dismiss both the Chapter 6 application the TWU lodged on behalf of Mr Leibeck and the accompanying s.332 notification. However, I reserve to the TWU the right to seek the reconvening of these proceedings within a period of six months in the light of the outcome of the ADB proceedings. P J CONNOR Commissioner 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: 29 April 2011