Tomlinson v Ramsey Food Processing Pty Ltd

• Jurisdiction: Australia Federal only
• Judge: French CJ,Bell,,Gageler,,Keane JJ.,Nettle JJ
• Judgment Date: 12 August 2015
• Neutral Citation: [2015] HCA 28
• Docket Number: S7/2015
• Court: High Court
• Date: 12 August 2015

[2015] HCA 28

HIGH COURT OF AUSTRALIA

French CJ, Bell,, Gageler,, Keane and Nettle JJ

S7/2015

Grant Tomlinson

Appellant

and

Ramsey Food Processing Pty Limited

Respondent

Representation

D M J Bennett QC with R I Goodridge for the appellant (instructed by Monaco Solicitors)

B W Walker SC with K W Andrews for the respondent (instructed by Colin Biggers & Paisley Solicitors)

Tomlinson v Ramsey Food Processing Pty Limited

Estoppel–Issue estoppel–Appellant employed at abattoir operated by respondent–Appellant subsequently employed by third party providing labour services to respondent–Appellant complained to Fair Work Ombudsman that entitlements not paid upon termination of employment–Fair Work Ombudsman commenced proceedings in Federal Court of Australia against respondent–Federal Court determined respondent, not third party, was appellant's employer–Appellant commenced proceedings claiming damages from respondent for personal injury sustained at abattoir–Appellant argued third party, not respondent, was his employer–Respondent argued appellant was issue estopped by reason of Federal Court proceedings from denying that respondent was appellant's employer–Whether appellant was issue estopped by reason of declarations and orders made in Federal Court proceedings–Whether appellant was privy in interest with Fair Work Ombudsman in Federal Court proceedings.

Words and phrases–‘claim under or through’, ‘estoppel’, ‘issue estoppel’, ‘on behalf of’, ‘privity of interest’, ‘privy in interest’.

ORDER

• 1. Appeal allowed.

• 2. Set aside paragraphs 2, 3, 4 and 5 of the order of the Court of Appeal of the Supreme Court of New South Wales made on 21 July 2014.

• 3. Remit the matter to the Court of Appeal to determine the issue raised by the respondent's notice of contention in this Court.

• 4. The respondent pay the appellant's costs of the appeal to this Court and of the appeal to date in the Court of Appeal.

1 French CJ, Bell,, Gageler,, Keane JJ. The question in this appeal is whether the claiming by the Fair Work Ombudsman and the making by a court of declarations and orders in a civil penalty proceeding created an issue estoppel on which a respondent to that proceeding was entitled to rely in a subsequent common law proceeding brought against it by a worker.

2 The resolution of the question is that the claiming and the making of the declarations and orders created no issue estoppel, for want of sufficient connection in interest between the Fair Work Ombudsman and the worker.

How the question arises

3 Ramsey Food Processing Pty Limited (‘Ramsey’) operated an abattoir at South Grafton from 2005 until 2009. Mr Tomlinson started work at the abattoir in 2005.

4 Mr Tomlinson and other workers at the abattoir were told in October 2006 that their previous employment was at an end and that they would from then on be employed by Tempus Holdings Pty Ltd (‘Tempus’). Mr Tomlinson and other workers at the abattoir were told in November 2008 that Tempus had then ceased ‘providing labour’ to Ramsey, as a result of which Tempus was unable to offer them ongoing employment. Mr Tomlinson afterwards complained to the Fair Work Ombudsman that his ‘entitlements’ had not been paid when he was made redundant.

5 The Fair Work Ombudsman is established under the Fair Work Act 2009 (Cth) 1. The statutory functions of the Fair Work Ombudsman include to commence proceedings in a court ‘to enforce’ the Workplace Relations Act 1996 (Cth) and awards made under that Act 2. The statutory functions of the Fair Work Ombudsman also include ‘to represent’ employees who are or may become parties to proceedings in a court if the Fair Work Ombudsman considers that

representing those employees will promote compliance with the Workplace Relations Act or such an award 3.

6 In the exercise of the first of those functions, as distinct from the second, the Fair Work Ombudsman commenced a proceeding against Ramsey in the Federal Court of Australia. The Fair Work Ombudsman sought in that proceeding orders under a section of the Workplace Relations Act which conferred power on an ‘eligible court’ to impose a civil penalty on application by the Fair Work Ombudsman on a person bound by and in breach of an ‘applicable provision’ 4. The latter expression was defined to encompass a term of an award made under the Workplace Relations Act as well as a term of the Australian Fair Pay and Conditions Standard 5.

7 The section of the Workplace Relations Act which conferred power on an eligible court to impose a civil penalty went on to confer power on that court to order that a person found to be an ‘employer’ pay an amount to a person found to be an ‘employee’. The relevant sub-section provided 6:

‘Where, in a proceeding against an employer under this section, it appears to the eligible court that an employee of the employer has not been paid an amount that the employer was required to pay under an applicable provision … the court may order the employer to pay to the employee the amount of the underpayment.’

8 The Fair Work Ombudsman alleged in the proceeding against Ramsey in the Federal Court: that Ramsey, not Tempus, had been the employer of Mr Tomlinson and 10 other persons at the abattoir; that Ramsey, as employer, had been bound by the terms of an award applicable to employment in the meat industry made under the Workplace Relations Act7 as well as by the terms of the

Australian Fair Pay and Conditions Standard 8; and that Ramsey, as employer, had failed to pay Mr Tomlinson and the other 10 persons amounts which Ramsey was required to pay to them on termination of their employment under particular terms of the applicable award 9 and under a particular term of the Australian Fair Pay and Conditions Standard 10. The Fair Work Ombudsman sought a civil penalty for those breaches, together with orders that Ramsey pay Mr Tomlinson and the other persons the required amounts. Mr Tomlinson and the other persons were not parties to the proceeding.

9 The principal issue in the proceeding in the Federal Court was whether Ramsey or Tempus had been the employer of Mr Tomlinson and the 10 other persons at the abattoir. The Federal Court (Buchanan J), after a trial on the merits in which Mr Tomlinson provided evidence, determined that issue adversely to Ramsey 11. The Federal Court held: that Ramsey had been the true employer; that everything done by Tempus had been done on behalf of Ramsey; and that the interposition of Tempus was a sham. The Federal Court went on to make declarations which included: that Mr Tomlinson and eight of the other persons had been employed at the abattoir at least since October 2006 (and that the other two persons had been employed since October and November 2007 respectively); that the employment of each of those persons had been terminated by Ramsey in November 2008; and that Ramsey had breached specified terms of the applicable award and of the Australian Fair Pay and Conditions Standard in failing to make specified payments to those employees. At the time of making those declarations, the Federal Court also made orders that Ramsey pay to Mr Tomlinson and to each of the other 10 persons specified amounts calculated as the amounts which Ramsey had underpaid those employees together with interest. The Federal Court went on in a later phase of the proceeding to impose a civil penalty on Ramsey payable to the Commonwealth in respect of the breaches the Court had declared 12.

10 Mr Tomlinson subsequently brought a proceeding against Ramsey in the District Court of New South Wales in which Mr Tomlinson claimed damages in negligence at common law in respect of a personal injury he had sustained when working at the abattoir in June 2008. The case that Mr Tomlinson sought to mount was that, while Tempus was his employer, Ramsey as the party in control of the workplace owed him a duty of care akin to that owed by an employer, and that Ramsey's breach of that duty caused his injuries. If Ramsey was Mr Tomlinson's ‘employer’ in June 2008, Mr Tomlinson was prevented from bringing that claim, or from recovering damages, by a number of provisions of New South Wales legislation governing management of 13, and limiting recovery for 14, workplace injuries. Ramsey relied on those provisions in its defence in the District Court proceeding. Ramsey argued that Mr Tomlinson was estopped by the declarations and orders made in the Federal Court proceeding from denying that Ramsey was his employer. Ramsey argued in the alternative that Ramsey was in fact Mr Tomlinson's employer. Neither party suggested in the District Court, or has suggested at any stage since, that there was any relevant difference between an employer for the purposes of that New South Wales legislation and an employer for the purposes of the Fair Work Act and the Workplace Relations Act.

11 The District Court (Mahony DCJ), after a trial on the merits, rejected Ramsey's argument of issue estoppel and found on the evidence before the District Court (which was more limited than the evidence that had been before the Federal Court) that Mr Tomlinson's employer in June 2008 had been Tempus and not Ramsey 15. The District Court found the elements of Mr Tomlinson's cause of action in negligence to have been established and entered judgment for Mr Tomlinson against Ramsey for damages.

The question in the Court of Appeal

12 The Court of Appeal of the Supreme Court of New South Wales (Meagher, Ward and Emmett JJA) unanimously allowed an appeal by Ramsey 16. The Court of Appeal set aside the judgment entered in the District Court and ordered instead that there be judgment for Ramsey.

13 The Court of Appeal held that the declarations and orders made in the earlier Federal Court proceeding created an estoppel on the issue of who had been Mr Tomlinson's employer between...