Millsom v North Melbourne College Aus Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 22 June 2023
• Neutral Citation: [2023] FCA 677
• Date: 22 June 2023

Federal Court of Australia

Millsom v North Melbourne College Aus Pty Ltd [2023] FCA 677

File number(s):	VID 50 of 2022
Judgment of:	HESPE J
Date of judgment:	22 June 2023
Catchwords:	PRACTICE AND PROCEDURE – summary dismissal application pursuant to Federal Court of Australia Act 1976 (Cth) s 31A(2) and/or Federal Court Rules 2011 (Cth) r 26 – whether applicant has no reasonable prospect of successfully prosecuting the proceeding – res judicata – cause of action or claim estoppel – issue estoppel – Anshun estoppel – whether deed of release rendered subsequent proceedings an abuse of process
Legislation:	Fair Work Act 2009 (Cth) ss 45, 323, 545, 546(3) Federal Court of Australia Act 1976 (Cth) s 31A(2) Superannuation Guarantee (Administration) Act 1992 (Cth) Superannuation Guarantee Charge Act 1992 (Cth) Educational Services (Post-Secondary Education) Award 2010 cl 20.2 Federal Court Rules 2011 (Cth) r 26.01
Cases cited:	Blair v Curran (1939) 62 CLR 464 Bryant v Australia and New Zealand Banking Group Ltd (No 3) [1995] FCA 1552 Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 Clayton v Bant [2020] HCA 44; (2020) 272 CLR 1 Donnelly v Kempsey Local Aboriginal Land Council [2020] NSWSC 1548 Fernando v Commonwealth [2014] FCAFC 181; (2014) 231 FCR 251 Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 Hoysted v Federal Commissioner of Taxation [1926] AC 155; (1925) 37 CLR 290 Jackson v Goldsmith (1950) 81 CLR 446 Kinch v Walcott (1929) AC 482 Pollnow v Armstrong [2000] NSWCA 245 Port of Melbourne Authority v Anshun (1981) 147 CLR 589 Robinson v Deep Investments Pty Ltd [2018] FCAFC 232 Sheehy v Nuix Pty Ltd [2023] FCA 56 Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406 Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149 Victoria International Container Terminal Ltd v Lunt [2021] HCA 11; (2021) 271 CLR 132 Wardman v Macquarie Bank Ltd [2023] FCAFC 13 Western Australia v Fazeldean (No 2) [2013] FCAFC 58; (2013) 211 FCR 150 Willoughby v Clayton Utz (No 2) [2009] WASCA 29; (2009) 40 WAR 98 Zetta Jet Pte Ltd v The Ship “Dragon Pearl” (No 2) [2018] FCAFC 132; (2018) 265 FCR 290
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	77
Date of hearing:	23 May 2023
Counsel for the Applicant:	Mr D Kelsey-Sugg
Solicitor for the Applicant:	Zaparas Lawyers
Counsel for the Respondent:	Mr J Fetter
Solicitor for the Respondent:	ASKY International Lawyers

ORDERS

		VID 50 of 2022
BETWEEN:	DARREN MILLSOM Applicant
AND:	NORTH MELBOURNE COLLEGE AUS PTY LTD Respondent

order made by:	HESPE J
DATE OF ORDER:	22 June 2023

THE COURT ORDERS THAT:

1. The respondent’s interlocutory application dated 23 August 2022 be dismissed.

2. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HESPE J:

Introduction

1. By his amended originating application dated 18 July 2022, the applicant seeks declarations, compensation and pecuniary penalties against the respondent pursuant to the Fair Work Act 2009 (Cth).

2. On 30 August 2022, the respondent filed an interlocutory application seeking summary dismissal of the proceeding pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and/or r 26.01 of the Federal Court Rules 2011 (Cth) on the basis that the applicant has no reasonable prospect of successfully obtaining the relief sought and/or the proceeding is an abuse of process of the Court. Among other things, the respondent contends that the applicant is seeking to re-litigate issues that were or ought to have been the subject of earlier proceedings in the Federal Circuit Court (as it then was) in which the Federal Circuit Court made final orders by consent and in circumstances where the parties had executed a deed of release.

3. For the reasons that follow, I have concluded that the respondent’s interlocutory application should be dismissed.

Overview of the proceedings

4. The applicant’s amended originating application to this Court relates to an alleged failure by the respondent to make superannuation contributions for the benefit of the applicant in the manner required by cl 20.2 of the Educational Services (Post-Secondary Education) Award 2010. The applicant claims that, by failing to make superannuation contributions in accordance with the terms of that Award, the respondent breached cl 20.2 of the Award and thereby contravened s 45 of the Fair Work Act.

5. By his amended statement of claim, the applicant claims that the failure to make those superannuation contributions by the time required by the Award deprived the applicant of the benefit of membership of a group life policy and a group income protection policy issued to the trustee of AustralianSuper and by reason of the applicant’s disablement, the applicant would have been entitled to the benefit of a total and permanent disability insurance payment. The applicant therefore lost the opportunity to make an insurance claim.

6. The applicant seeks relief in the form of declarations to the effect that the respondent breached s 45 of the Fair Work Act by failing to make superannuation contributions within the time required by the Award, and orders requiring the respondent to pay compensation and a pecuniary penalty to the applicant pursuant to s 546(3) of the Fair Work Act.

7. Although not a common law cause of action, the applicant’s claim in the form of his application for a statutory remedy based on a breach of s 45 of the Fair Work Act is referred to as a cause of action for the purposes of these reasons.

The interlocutory application

8. In support of its interlocutory application for summary dismissal, the respondent relies upon an affidavit of Mr Rajiv Dalal, solicitor for the respondent dated 24 August 2022 and on written submissions dated 17 November 2022 and 2 March 2023, as well as oral submissions made at a hearing on 23 May 2023.

9. The applicant relies upon two affidavits of Ms Aphroditi Bakopanos, dated 14 October 2022 and 2 December 2022, and an affidavit of Mr Matthew Andrews dated 22 May 2023 in opposition to the interlocutory application. The applicant also relies on written submissions dated 2 December 2022 and on oral submissions made at a hearing on 23 May 2023.

Applicable principles Summary judgment

10. Section 31A of the Federal Court Act provides in part:

(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the...