Details  Created: 15 May 2020

The Industrial Magistrate has dismissed a claim for redundancy payments on the basis that it was an abuse of process to relitigate the same issue against the same party in circumstances where that issue was refused by the Industrial Magistrates Court (IMC) in a previous claim. 

First Originating Claim

The claimant had initially lodged an Originating Claim in the IMC alleging the respondent failed to comply with the Freo Group Pty Ltd Maintenance and General Services Agreement 2016 (Cth) (EBA 2016) by failing to pay the claimant a redundancy payment under cl 20.8 of EBA 2016 and failing to pay in lieu of notice under cl 18.1 of the EBA 2016.

A preliminary issue was considered by the IMC in relation to the application of EBA 2016 and Reasons for Decision with respect to that preliminary issue were delivered at a later date.  

However, during the directions hearing, the IMC identified a number of issues concerning the application of EBA 2016 and that the application did not concern a claim for redundancy under the relevant provisions of the Fair Work Act 2009 (Cth) (FWA).

The claimant subsequently lodged an applicant to amend the claim (Claimant’s Application), seeking that the following be added:

‘8. In the alternative the respondent failed to pay notice and redundancy to the claim (as particularised above) pursuant to s 117 and s 119 of the Fair Work Act’.

The respondent opposed the Claimant’s Application.

The IMC refused the Claimant’s Application for various reasons, including that the claimant sought to introduce a new cause of action and had given no reason for delay in applying to amend the claim or why the provisions of the FWA had been overlooked.

The claimant then lodged a notice of discontinuance withdrawing the whole claim.  

Second Originating Claim (current application)

The claimant then lodged a second Originating Claim (Second Claim) alleging that the respondent contravened the FWA by failing to pay the claimant a redundancy payment under s 119 of the FWA and failing to a payment in lieu of notice under s 117 of the FWA.

The respondent sought the Second Claim be struck out or dismissed for reasons including that it was frivolous and vexatious, an abuse of the Court’s process, res judicata, and a waste of the Court’s resources where the claim was essentially a resubmission of argument that the claimant has had determined by the Court.

The claimant contended that the subject matter of the first claim had never been finally litigated as the IMC refused to allow the Claimant’s Application to amend the claim and, thus, the claimant’s current claim had not been determined at all.

The Industrial Magistrate found that, whilst acknowledging that from the claimant’s perspective there is no final judgment, the Second Claim ought to be dismissed as an abuse of process as it sought to litigate the same issue against the same party in circumstances where that issue was refused by the IMC in the first claim.

The Industrial Magistrate also found that the Second Claim was oppressive and unfairly revived previous failed litigation, and that it would not be efficient, economical, and expeditious for the claim to continue.

The decision can be read here.