WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES NAUM NIKOLOSKI

CLAIMANT

-v-

MOJAK PLASTICS PTY LTD

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

DATE WEDNESDAY, 13 JULY 2005

FILE NO. M 65 OF 2005

CITATION NO. 2005 WAIRC 02110

Representation 

CLAIMANT The claimant appeared in person

RESPONDENT Mr B Jackson (of Counsel) instructed by Gadens Lawyers appeared for the Respondent.

Catchwords:

Dismissal of claim, abuse of process, issue estoppel, res judicata, costs, frivolous or vexatious.

Legislation:

Industrial Relations Act 1979;

Industrial Magistrates Court (General Jurisdiction) Regulations 2000 – regulations 5, 7, 17 & 32;

Result:

Application granted and claim dismissed as an abuse of process.  No order as to costs.

Case(s) referred to in decision:

CPSU v Murdoch University 2005 WAIRC 01898

REASONS FOR DECISION

(Delivered extemporaneously at the conclusion of the hearing, extracted from the transcript and edited by His Worship)

1. I am dealing with an application made by the Respondent that;

1. The claim be struck out, or alternatively;
2. That the claim be dismissed and judgment entered for the Respondent; and in any event
3. That the Claimant pay the Respondent’s costs of the action including today’s appearance.

2          Mr Nikoloski opposes the application.

3          This matter has a history. The history is that the same parties were involved in another action being M 283 of 2004.  With respect to that matter, on 20 April 2005, my brother Mr Tarr made orders by consent that the claim be dismissed and that there be no orders as to costs.  Subsequent to the making of that order, the Claimant has instituted this fresh proceeding.  On the face of it, this proceeding has been instituted for the same matters in issue as the matter previously concluded by way of consent orders in M 283 of 2004.  Effectively, the Claimant has started again using a different action in respect of the original claim.

4. Having heard from the Claimant today, it is quite apparent that he is aggrieved by the dismissal of his claim on 20 April 2005.  He is concerned that that order was not appropriately made.  He submits that there was no actual consent. Further he submits that even if the claim in that matter was dismissed on that date, that it does not bear or impact upon this matter because it was not dealt with on its merits.

5. The Respondent argues that when the matter proceeded before my brother it was determined in such a way that it was regarded by the parties as being conclusive of the matters in issue between them. That is the effect of the order and accordingly, any further claim such as the one before me is, in those circumstances, an abuse of process.  The fresh claim is vitiated by pleas of issue estoppel and res judicata, which the Respondent says bars any further action.

6. It is the case that a judgment made on an interlocutory basis can finally determine the issue between the parties.  There is no question about that. That is what appears to have occurred in this particular case.

7. It seems to me, from having heard the parties today that the Claimant is, in essence, unhappy with the orders made previously.  If that is the case, then his remedy is one of appeal to a higher Court.  It is not appropriate that he simply ignores the orders previously made concluding the issues between the parties and starts all over again, which he seems to have done in this matter.  His decision to start again may have resulted from his misunderstanding of the law and or his inability to fully comprehend the effect of what had previously occurred.  Notwithstanding that, to enable this claim to proceed further would in my view continue an abuse of process.

8. The Court is empowered by regulation 7 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 to control and manage cases coming before it.  Regulation 7(1) provides that:

“A Court may do all or any of the following for the purposes of controlling and managing cases and trials –

(r) “take any other action or make any other order for the purpose of

complying with regulation 5.”

9. Regulation 5 provides:

5.                  Court’s duties in dealing with cases

(1)               A Court is to ensure that cases are dealt with justly.

(2)               Ensuring that cases are dealt with justly includes ensuring —

(a)     that cases are dealt with efficiently, economically and expeditiously;

(b)     so far as is practicable, that the parties are on an equal footing; and

(c)     that a Court’s judicial and administrative resources are used as efficiently as possible.

10. In determining this matter it is the case that to allow this matter to proceed further would not result in a just outcome.  This claim is one, which offends that principle.  The matter should not be dealt with over again.  Matters should not be re-litigated. Any attempt at re-litigation constitutes an abuse of process.  In my view, the institution of this claim constitutes an abuse of process. Further, I would go so far as to say that by virtue of the agreement reached on the previous occasion, the Claimant is now estopped from taking the action that he has in this matter.  That is not to say that the Claimant does not have any right or that he has lost his right to seek to set aside the previous orders.  He may have a remedy in respect of the previous dismissal, but that remedy is not achieved by taking further action as he has done here.  That remedy may lie in instituting an appeal to overturn the order of dismissal in the previous matter.  However so far as this matter is concerned, given that the claim is on all fours with the claim previously made and further given that the Claimant seeks to re-litigate that matter which finally determined the issues between the parties, and further given that I cannot go behind the order made by my brother, it seems to me that the claim before me should not proceed and should be struck out because it constitutes an abuse of process. The claim will accordingly be struck out.

11. The Respondent (the applicant in this application) seeks costs.  I am invited to make a costs order against the Claimant on the basis that it is implicit or axiomatic that costs would follow a finding that the claim constitutes an abuse of process.

12. In determining this issue I shall refer to my recent decision concerning costs made in the context of my consideration of section 347 of the Workplace Relations Act 1996.  In that matter, being CPSU v Murdoch University 2005 WAIRC 01898, I reviewed at length the authorities in relation to costs. In so doing, I considered the question of vexatiousness.  My views in that matter have equal application here. Vexatiousness imports intent on the part of one party to abuse the process.  In this matter I cannot conclude that the Claimant has intended to abuse the process.  An abuse of process has occurred as a result of a misguided view of the law. An abuse of process can result from a mistake without intent to harass or embarrass.  In those circumstances it cannot be said that it is axiomatic that once there has been a finding of an abuse of process, a finding of vexatiousness follows.  In my view, there can be an abuse of process without it being vexatious.  It can simply happen as a result of a misguided view as has occurred in this particular case.  I do not find that in this matter the Claimant has intended to abuse the process.  He was of the view that, because the order that was previously made was not made in what he viewed to be the appropriate way that he could simply start again. He was simply misguided. I take the view that his actions were not vexatious although they did, in the end, amount to an abuse of process.  Further it cannot be said that the claim in this matter was frivolous in all the circumstances.

13. For those reasons I would not order costs.  The orders that I make in this matter are that the claim be struck out as an abuse of process and that there be no order as to costs.

G Cicchini

Industrial Magistrate