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Parker v Garry Crick's (Nambour) Pty Ltd[2024] QDC 20

Reported at (2024) 4 QDCR 1

Parker v Garry Crick's (Nambour) Pty Ltd[2024] QDC 20

Reported at (2024) 4 QDCR 1

DISTRICT COURT OF QUEENSLAND

CITATION:

Parker v Garry Crick’s (Nambour) Pty Ltd & Anor [2024] QDC 20

PARTIES:

PHILIP JOSEPH PARKER

(appellant)

v

GARRY CRICK’S (NAMBOUR) PTY LTD A.C.N. 069 267 081

(first respondent)

and

AUTOPACT PTY LTD A.C.N. 608 040 606

(second respondent)

FILE NO:

Appeal No. 41/23

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

23 January 2024

DELIVERED AT:

Cairns

HEARING DATE:

21 November 2023

JUDGE:

Morzone KC DCJ

ORDER:

  1. Appeal dismissed.
  2. Unless either party applies for, or the parties otherwise agree to, a different costs order within 14 days of this judgment, the appellant will pay the costs of the respondents of the appeal to be assessed on the standard basis.

CATCHWORDS:

APPEAL – ISSUE ESTOPPEL – stay of proceedings – claim for damages for breach of employment contract after determination of unfair dismissal application by Fair Work Commission's – whether the learned magistrate erroneously applied the doctrine of issue estoppel to proceedings of the Fair Work Commission – whether the learned magistrate erred by relying upon Leggett v Hawkesbury Race Club (No 1) as an analogue – whether appellant entitled to continue his proceeding for damages occasioned by loss of financial accreditation due to notice of termination – whether viable claim for damages for breach of his employment contract. 

LEGISLATION:

District Court of Queensland Act 1967 (Qld)

Fair Work Act 2009 (Cth)

Uniform Civil Procedure Rules 1999 (Qld)

CASES:

Addis v Gramaphone Co [1909] AC 488

Administration of the Territory of Papua and New Guinea v Guba (1973) 130 CLR 353

Allesch v Maunz (2000) 203 CLR 172

Blair & Perpetual Trustee Co Ltd v Curran (Adams’ Will) (1939) 62 CLR 464

Brewer v Brewer (1953) 88 CLR 1

Cashman v Brown (2011) 242 CLR 647

Civil Air Operations Officers Association of Australia v Airservices Australia [2020] FCA 1665

Egri v DRG Australia Ltd (1988) 19 NSWLR 600

Jackson v Goldsmith (1950) 81 CLR 446

Kuligowski v Metrobus (2004) 220 CLR 363

Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75

Murphy v Abi-Saab (1995) 37 NSWLR 280

Parker v Garry Crick's (Nambour) Pty Ltd [2018] FWCFB 279

Queensland v Commonwealth (Second Territory Senators’ case) (1977) 139 CLR 585

Russell v The Trustees of Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559

Thompson v Cavalier King Charles Rescue (Qld) Inc [2020] QSC 34

Warren v Coombes (1979) 142 CLR 531

COUNSEL:

AJ Smith for the respondent

SOLICITORS:

Appellant self-represented

Aitken Legal for the respondent

Summary

  1. [1]
    The appellant appeals from an order of the Magistrates Court in Cairns made on 11 July 2023 to permanently stay his proceeding seeking damages for breach of his employment contract.
  2. [2]
    The appellant now appeals this decision relying on two grounds: firstly, that the learned magistrate erroneously applied the doctrine of issue estoppel to proceedings of the Fair Work Commission, and secondly, the learned magistrate erred by relying upon Leggett v Hawkesbury Race Club (No 1) as an analogue.  He asserts that he is entitled to continue his proceeding for breach of his employment contract beyond the scope of the Fair Work Commission's unfair dismissal proceeding.  On the contrary, the respondents resists the appeal, arguing that the Fair Work Commission is a “judicial tribunal” to which the doctrine of issue estoppel applies and that the learned magistrate’s use of Leggett by way of parity of reasoning was entirely appropriate.
  3. [3]
    Both parties made written and oral submissions on the appeal hearing, and further submissions on the scope and particulars of damages sought by the appellant.
  4. [4]
    I have concluded that the learned magistrate was justified in applying the doctrine of issue estoppel to permanently stay the whole proceeding having regard to the discreet issues subject of the earlier commission determination.  And while the learned magistrate, referred to Leggett v Hawkesbury Race Club (No 1) for parity of reasoning, he remained focused on, and correctly applied, the relevant principles.  The appellant is estopped from relitigating the issues finally determined by the commission, namely, that he engaged in gross misconduct, which warranted dismissal, and that he was prematurely dismissed without being afforded procedural fairness or an opportunity to be heard under his employment contract, which sounded in a greater award of lost income in lieu.   It seems to me that the appellant's further civil claim for damages was subject of the commission’s decision and otherwise unviable in any event.  His further particularised claim for prospective damages is too remote.  The proceeding ought to be stayed as an abuse of process.
  5. [5]
    Accordingly, I will dismiss the appeal, with costs to follow that event in favour of the respondents.

Mode of Appeal

  1. [6]
    The appellant appeals under s 45 of the Magistrates Courts Act 1921 (Qld). 
  2. [7]
    This court has the same powers as the Court of Appeal when hearing an appeal.[1]  Those powers are contained in Part 3 Division 1 of the Supreme Court of Queensland Act 1991, and the relevant rules, particularly Chapter 18 Part 3.  By rule 785 of the UCPR, Part 1, other than rules 746, 753, 758, 766(3), 767, 776 and 777, applies to appeals to the District Court, with necessary changes, and subject to any practice direction of the court in which the appeal is brought.
  3. [8]
    The mode of the appeal is by rehearing.[2]  This court effectively hears the matter again on the record of evidence before the trial magistrate.  The court is empowered to draw inferences of fact from that evidence,[3] and any fresh evidence it allows on special grounds.[4]  Its function is to consider each of the grounds of appeal regarding the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. 
  4. [9]
    The appellant must demonstrate that having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.[5]
  5. [10]
    Under s 47 of the Magistrates Courts Act 1921 (Qld), on the hearing of the appeal, this court may:
    1. draw inferences of fact from facts found by the Magistrates Court or from admitted facts or facts not disputed; 

    2. order a new trial on such terms as it thinks just; 

    3. order judgment to be entered for any party; 

    4. make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties; 

    5. as regards any special case, remit the matter to the Magistrates Court with the opinion of the District Court thereon;
    6. make such order with respect to the costs of the appeal or special case as it thinks proper.

Did the learned magistrate erroneously apply the doctrine of issue estoppel to proceedings and determination of the Fair Work Commission?

  1. [11]
    A final decision by a competent tribunal creates an issue estoppel that forever binds the parties in respect of any issue of fact or law[6] which was legally indispensable to that decision.[7]  If the doctrine applies here, the appellant will be bound in the sense that he is precluded in subsequent proceedings from asserting, as against other parties to the decision, to the contrary of any issue fundamental to the decision.[8]
  2. [12]
    For the doctrine of issue estoppel to apply in this proceeding, three critical factors are required in respect of the earlier Fair Work Commission proceeding:[9]
    1. Were the parties, or their privies, the same persons in each proceeding?
    2. Was it a final judicial decision?
    3. Was the same question or issue decided?

Were the parties, or their privies, the same?

  1. [13]
    In this proceeding the appellant, as plaintiff, sues the first defendant company, Gary Crick’s (Nambour) Pty Ltd, as the business operator of the automotive dealership trading as “Cricks Volkswagen Sunshine Coast”; and the second defendant company, Autopact Pty Ltd, being the company formerly named “Crick Autogroup Pty Ltd” and the holding company of Gary Crick’s (Nambour) Pty Ltd.  The appellant pleads that he was employed by both entities in their respective capacity.
  2. [14]
    The parties before the commission were the appellant, as applicant, who was applying for re-instatement of his employment for unfair dismissal by his employer - Gary Crick’s (Nambour) Pty Ltd as The Trustee for Crick Unit Trust T/A Cricks Volkswagen, as respondent.
  3. [15]
    There is no dispute here that the parties or their privies are the same in both proceedings.

Is the decision of the Fair Work Commission a final judicial judgment?

  1. [16]
    Like the doctrine of res judicata, the commission’s decision must be characterised as a final judgment of a competent tribunal making a judicial, as distinct from an administrative, decision.[10]  The commission must have possessed jurisdiction to decide the issue(s) conclusively between the parties and for all purposes and not merely incidentally and for a limited purpose.[11]
  2. [17]
    I readily conclude that the decision of the Fair Work Commission is a final judicial judgment for these purposes.
  3. [18]
    The determination made by the Fair Work Commission has all the indicia of being a requisite final judicial judgment, including that the matter was formally adjudicated by the commission having considered and decided the necessary issues as part of its determination of unfair dismissal; both parties had the opportunity to present evidence[12] and arguments on the issue, and the decision was based on the presented evidence and legal arguments; the decision included findings of fact or law relevant to and essential for the determination of the appellant’s termination constituted unfair dismissal; the decision was final and conclusive,[13] and was not subjected to further review or appeal;[14] the decision on the relevant issues is clear and unambiguous, and absent any uncertainty or ambiguity regarding the resolution of the matter; the decision reflects a proper application of the law to the facts of the case, consistent with established legal principles and precedent; and there is an accurate and full record of the proceedings comprising the transcripts and determination that demonstrate the court's hearing and determination of the matter.

Was the same question or issue decided?

  1. [19]
    Consideration of this question involves an examination of the record, including the reasons for the judgment, of the commission.
  2. [20]
    The issue in this proceeding must be precisely the same as that decided in the earlier commission proceedings.[15]  However, unlike res judicata, the plea of issue estoppel may succeed although the causes of action in the two cases (eg. statutory compensation for unfair dismissal and damages for breach of contract) are different.[16]  It is not enough that the issue was raised in the former commission proceedings, or even that it made a finding upon it; rather the doctrine of issue estoppel will only apply if the issue ruled upon by the commission was indispensable or fundamental to the ultimate decision in that case.[17]  A practical test of whether a finding is fundamental is to ask whether it is possible to appeal against the finding.[18]  The estoppel may arise from a finding expressed in negative terms.[19]  Relevantly here, for matters of fact, issue estoppel is confined to the ultimate facts that form the ingredients in the cause of action,[20] but there is no estoppel as to evidentiary facts found in the course of determining the affirmative or negative of an issue.[21] Accordingly, there is nothing to prevent a party from tendering in a later proceeding, in relation to a particular issue, facts negatived in an earlier proceeding when they were tendered in relation to a different issue.[22]
  3. [21]
    In the commission case of Parker v Garry Crick's (Nambour) Pty Ltd [2017] FWC 4120, the appellant, who was employed as a business manager of respondent, contended that his forced resignation on 14 September 2016 was a constructive dismissal.  On the contrary, the respondent raised a jurisdictional objection on the ground that no termination had occurred at the instance of the respondent. 
  4. [22]
    For the first incident, a female employee testified that the appellant told her, “If you ever call me that business guy, or that finance guy, I will backhand you. I don’t care if you are a girl.”  The second incident occurred after that same employee told the appellant that a customer was making her feel uncomfortable with sexist and rude comments.  She said the appellant responded: “Just show them your tits and you’ll be fine.”  The appellant contested the factual basis of the allegations and denied the two incidents.  The commission rejected the jurisdictional argument, but accepted the employee’s account and found that while there was a valid reason for dismissal, the dismissal process was unfair.  The commissioner explained that: 

“The Applicant, however was not provided with procedural fairness as a prior investigation was not undertaken by the Respondent nor was the Applicant given a reasonable opportunity to respond to the allegations prior to the termination of his employment. This process would have taken further time to complete.”

  1. [23]
    A procedurally fair process would have resulted in the appellant remaining in employment for a further three weeks.  Nevertheless, it was found that the seriousness of the appellant’s misconduct significantly outweighed any procedural deficiencies that may have been present in the employer’s disciplinary process. 
  2. [24]
    The commissioner concluded that:

“Even if the procedural issues had been rectified, it would not have changed the decision to terminate the Applicant’s employment. Given the gravity of the comments, dismissal was appropriate in all the circumstances. Taking into account the procedural flaws, a procedurally fair process allowing for an investigation and proper process of notification and response would have taken a longer period to be discharged.  The termination was unfair on this basis.”

  1. [25]
    The appellant did not seek reinstatement.  Having found that there was a valid reason for dismissal, but that the termination process had procedural flaws, the commission awarded compensation of $8,267.10 instead of reinstatement.  The commission applied the assessment criteria in s 392(2) of the Fair Work Act 2009 (Cth), which were considered as follows:
  1. “[126]
    In calculating the appropriate amount of compensation to be awarded, regard must be had to the matters in s. 392(2) of the Act:
  1. (a)
    the effect of the order on the viability of the employer’s enterprise; and
  1. [127]
    There is no evidence that an Order for compensation would affect the viability of the Respondent’s enterprise.
  1. (b)
    the length of the person’s service with the employer; and
  1. [128]
    The Applicant was most recently employed by the Respondent between 11 January 2016 and 12 September 2016.
  1. (c)
    the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
  1. [129]
    It is considered that if the Respondent had conducted a process whereby the first allegation was put to the Applicant at an early stage (rather than several months later) and a procedurally fair process of investigation with an appropriate period for a response being afforded (not in response to the nature of the letter that was provided), the Applicant would have remained employed for an additional period.
  1. [130]
    The employment relationship was not stable, the Applicant’s texts and emails, as referred to, show that the Applicant was frustrated with many of his colleagues and his lack of progression (on his terms) within the company. The Applicant’s representative considered the employment relationship would have lasted a further 10 months.  The Respondent assessed a further two weeks.  It is considered that given these allegations and the issues in the employment relationship, a further three weeks would have allowed for the discharge of the proper process and brought the employment relationship to an end.
  1. (d)
    the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
  1. (e)
    the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
  1. (f)
    the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
  1. [131]
    In regard to these criteria, it was not in dispute that the Applicant had made attempts to mitigate his loss.  The Applicant had earned through intermittent employment, $30,195.00 including GST between the date of the dismissal and the end of the 2016 – 2017 financial year.  A deduction has not been made for this income, given the additional three weeks represented compensation for the period to allow for the discharge of a procedurally fair process.
  1. (g)
    any other matter that the FWC considers relevant.
  1. [132]
    The Applicant was paid an ex gratia amount of $807.69 on his dismissal.
  1. [133]
    The Applicant did not seek reinstatement and reinstatement was deemed not appropriate in circumstances where there was a breach of the Respondent’s sexual harassment policy and a threat of violence, particularly by the Applicant’s comment to Person A, “if you ever call me that business guy, or that finance guy, I will backhand you. I don’t care if you are a girl.” There was a loss of trust and confidence in the Applicant.
  1. [134]
    In considering the appropriate amount for the award of compensation, all of the circumstances have been taken into account. The misconduct of the Applicant contributed to the Respondent’s decision to terminate his employment. It is considered that the employment relationship would only have continued for a further three weeks, taking into account this further period to allow for the discharge of the procedural steps to effect the dismissal.
  1. [135]
    In considering the relevant amount of compensation, payslips provided for the weeks of 24 August 2016 to 12 October 2016, set out that the ordinary time gross earnings represented $807.69 and a car allowance of $118.72 paid per week. In addition, it is noted that all prior commissions earned by the Applicant had been paid by agreement between the parties on finalising the employment relationship.
  1. [136]
    Further deductions for contingencies or earnings after the dismissal are not considered appropriate, given the basis for the calculation of compensation. Further to this, the parties did not disagree on the inclusion of commission payments in the consideration of calculating a weeks’ wages, however there was disparity on the amounts of such. These arguments have been taken into account. The average commissions earned (since the Applicant’s recent commencement with the Respondent) are relied on.
  1. [137]
    Accordingly, this represents a total gross remuneration figure for three weeks of $8,267.10 (calculated at ordinary time gross earnings, plus car allowance, plus the average commissions earned between 13 April 2016 and 12 October 2016), less the ex gratia payment of $807.69.”
  1. [26]
    In this proceeding, the appellant claims damages for breach of contract of employment.  The pleading traverses the process allowing for an investigation and proper process of notification and response for misconduct under his employment contract comprising express and implied terms, the national employment standards, letter/offer of employment letter, the document titled “KPIs Starting July 1st 2016”, and the Crick Auto Group Handbook (March 2015).
  2. [27]
    Consistently with the commission finding of procedural flaws in the termination process, the appellant pleads that:

“12. …the Defendants have breached the plaintiff’s contract of employment by:

  1. Terminating the Plaintiff’s employment before any fair or impartial investigation had taken place.
  2. By not referring the matter to an independent third party.
  3. By not providing the plaintiff with the ability to approach Gary Crick, John Eastham or a (sic) applicable government authority.
  4. Not allowing him to have a witness present.”
  1. [28]
    In my view, the appellant is estopped from relitigating the specific issues finally determined by the commission, in particular, that he engaged in gross misconduct, which warranted dismissal but that he was prematurely dismissed without being afforded procedural fairness or an opportunity to be heard under his employment contract, which would have inevitably resulted in termination in three weeks for which he was compensated. 
  2. [29]
    On my reading of the appellant’s statement of claim in this proceeding, he does not seek to relitigate contradictory facts nor challenge the commission’s findings or their factual foundation.  Instead, he merely summarises the necessary facts to support a claim for future or prospective damages flowing from the respondent’s breach of contract.  That is, he merely relies upon the ultimate facts that form the ingredients in the commission’s determination, about which he is otherwise estopped form challenging.
  3. [30]
    The critical question is whether his claim for additional damages sought in this proceeding is caught by the doctrine of issue estoppel or otherwise viable?  I have come to the view that the appellant’s claim for damages is thwarted by the operation of issue estoppel, and is otherwise unviable.
  4. [31]
    The appellant alleges that he has been “significantly injured in his employment and career” by reason of those breaches of contract to claim against the first and second defendant – “total damages for breach of contract in the sum of $135,208.64 for lost income over the proceeding next 12 months”.  The bare pleading falls well short of the rules of pleading the nature, amount and particulars of damages claimed in accordance with rr 155, 157, 158, 159 and 160 of the Uniform Civil Procedure Rules 1999 (Qld).  Consequently, I invited the appellant to provide further particulars of the damages sought in the proceeding, which he provided as follows:
  1. “5.
    Should the appellant be estopped from reagitating the facts of the dismissal in this new cause of action and be confined to arguing the breach caused injury the appellant submits that the claim is tenable because of the lost opportunity to seek alternative employment from the superior bargaining position of current employment.
  1. The Appellant worked for the respondent as a Business Manager which is a role which requires the Appellant to be an Authorised Credit Representative for several Banks, Credit companies and Insurance companies.
  1. When a Business Manager moves from one dealership group to another their accreditations are transferred without any additional checks or training required and only refused if the appellant has been charged or convicted of a criminal offence.
  1. The appellant submits that because of the immediate termination of his employment that the Respondents have notified the relevant Banks, Credit companies and Insurance companies he held accreditations of his termination which in turn also terminated his accreditations of those banks.
  1. As a result when the appellant accepted a position on the 26th of September 2016 at an alternative dealership he would have been able to simply transfer his current accreditations rather than apply for new accreditations.
  1. This resulted in the appellant having to accept a lower paid self employed position of a Locum / Contractor with the employer who had previously expressed a desire to hire him full time. This application to the new dealership was within 3 weeks of the dismissal.
  1. The appellant submits that he would seek to submit the calculation of those damages as follows;
  1. The appellant earned as per his final payslip $38,712 gross excluding super working for the respondents up until the 12th of September 2016 which equates to 10.2 weeks in the financial year 2016 – 2017.
  1. This equates to a weekly average of $3,712.11 or $193,029 per year inline with previous years incomes with the respondents.
  1. The appellant in the lower position only earned $27,450 in the remaining 39.6 weeks of the financial year 2016 – 2017
  1. The appellants submits that this means the appellants caused him a loss in the 2016 – 2017 Financial Year of;

(i)(b)$193,029 Minus (a) $38,712 and (c)$27,450 = $126,867 provable lost income plus super entitlements of 9.5% equal to $12,052

  1. The appellant submits that the injury sustained as a direct result of a failure of notice as found by commissioner spencer (sic) easily has a substantive quantum and even should the appellant be estopped from disputing the opinions of commissioner spencer (sic) as his loss from not being able to transfer his accreditations from the superior bargaining position of current employment have caused him to fail to find even similar employment.”
  1. [32]
    In essence, the appellant seeks a species of damages equating to the loss of income in his lower-paid position due to the termination of his financial accreditations after notice of his untimely termination.
  2. [33]
    The period of compensation flowing from the respondent's failure to apply grievance procedures was indispensable or fundamental to the ultimate decision in the commission proceedings.  Indeed, the temporal issue was considered in the appeal.  On appeal, the full bench of the Fair Work Commission rejected the application to appeal, finding “no arguable case of bias has been demonstrated” and affirmed that the timeline of three weeks for the compensation was not considered “in a vacuum”, but that “It was in a context where she had determined that there was a valid reason for dismissal and the remaining issue was simply to estimate how long it would have taken for a procedurally fair process to have been afforded to the Appellant by the Respondent — the answer was three weeks.”[23]
  3. [34]
    It seems to me that the damages sought in this proceeding are largely caught by the assessment criteria described in s 392(2)(c), (d), (e), (f) and (g) of the 392(2) of the Fair Work Act 2009 (Cth), which were considered by the commission and were essential to its determination, as set out above.  Therefore, the operation of issue estoppel will thwart the appellant’s damages claim.  It must follow that the decision below was correct.
  4. [35]
    Even if the appellant’s prospective economic loss claim, as presently framed, goes beyond the statutory criteria for deciding the amount of compensation subject to the commission proceeding, it is unviable and doomed to fail. 
  5. [36]
    In Russell v The Trustees of Roman Catholic Church for the Archdiocese of Sydney,[24] the New South Wales Court of Appeal held that:

“In accordance with established principle, the damages to which the appellant was entitled on establishing a wrongful dismissal were assessed by reference to the period of notice to which he was entitled under his employment contract, less the payment received on termination in lieu of notice”.

  1. [37]
    And relevantly here, after referring to Addis v Gramaphone Co,[25] the court said that damages are not recoverable by a dismissed employee for “the loss he may sustain from the fact that his having been dismissed of itself makes it more difficult for him to obtain fresh employment”.[26]
  2. [38]
    It seems to me that the appellant’s prospective damages claim relates to the continuity of his accreditation as distinct from the respondent’s failure to follow the grievance process.  It is too remote to the breach claimed and not viable.  The appellant remains bound by the commission’s determination that he engaged in gross misconduct that warranted dismissal and was duly compensated for his premature constructive dismissal. 

Did the learned magistrate err by relying upon analogous reasoning in Leggett v Hawkesbury Race Club (No 1)? 

  1. [39]
    The learned magistrate referred to Leggett v Hawkesbury Race Club Limited (No 1) [2021] FCA 1298 saying that - “It seems to me that the case of Leggett v Hawkesbury Race Club is an example of (sic) directly on point where it was found that the body – that by parity of reasoning, the same applies to decision of the Fair Work Commission.  If the body conducts itself in a manner that contains all of the same features as a judicial determination, then it’s fair to say it’s not an administrative determination”.
  2. [40]
    That case of Leggett was an evidentiary ruling on a voir dire about whether an arbitrator’s decision in the Workers’ Compensation Commission was admissible in the pending common law damages proceeding to prove issue estoppel, and the court held that they were admissible for that purpose.  In the course of the reasoning, the court identified that the real issues between the parties throughout the commission proceedings, including the arbitration, were: first, whether the alleged events occurred at all; if so, secondly, whether the conduct amounted to bullying and harassment of the claimant; thirdly, whether it was in the course of her employment; and fourthly, whether it was causative of psychological injury.  It seems to me that those matters were considered, not finally, but only to the extent necessary to determine the relevance and probity of the early decision.  Whilst the court’s reasoning exemplified the methodical reasoning of the seminal authorities, it was limited to determining the admissibility of evidence in the circumstances of that case and provided no factual comparative or authoritative assistance in this case. 
  3. [41]
    In my respectful opinion, the learned magistrate's use of Leggett v Hawkesbury Race Club (No 1) as a mere illustrative example did not deter him from correctly applying the relevant principles in his decision.

Conclusion

  1. [42]
    For these reasons, the learned magistrate did not err in the disposition of the application.  The proceeding ought to be stayed as an abuse of process pursuant to rule 16(g) of the Uniform Civil Procedure Rules 1999 (Qld).
  2. [43]
    Accordingly, I will order:
  1. Appeal dismissed.
  1. Unless either party applies for, or the parties otherwise agree to, a different costs order within 14 days of this judgment, each party will bear their own costs of the appeal.

Parker v Garry Crick's (Nambour) Pty Ltd [2024] QDC 20

Judge Dean P Morzone KC

Footnotes

[1]District Court of Queensland Act 1967 (Qld), s 113.

[2]Uniform Civil Procedure Rules 1999 (Qld), r 765(1). 

[3]Warren v Coombes (1979) 142 CLR 531, 537-541.

[4]Uniform Civil Procedure Rules 1999 (Qld), r 766(1)(c).

[5]Allesch v Maunz (2000) 203 CLR 172, [22]–[23].

[6]Queensland v Commonwealth (Second Territory Senators’ case) (1977) 139 CLR 585.

[7]Blair & Perpetual Trustee Co Ltd v Curran (Adams’ Will) (1939) 62 CLR 464 at 531.

[8]Blair & Perpetual Trustee Co Ltd v Curran (Adams’ Will) (1939) 62 CLR 464 at 532; Jackson v Goldsmith (1950) 81 CLR 446 at 466.

[9]Kuligowski v Metrobus (2004) 220 CLR 363.

[10]Administration of the Territory of Papua and New Guinea v Guba (1973) 130 CLR 353 at 451. 

[11]Cashman v Brown (2011) 242 CLR 647 at [40] per French CJ, Hayne, Crennan, Kiefel and Bell JJ agreeing); Blair & Perpetual Trustee Co Ltd v Curran (Adams’ Will) (1939) 62 CLR 464 at 531-532 per Dixon J.  Cf Civil Air Operations Officers Association of Australia v Airservices Australia [2020] FCA 1665.

[12]Fair Work Act 2009 (Cth), s 590.

[13]Fair Work Act 2009 (Cth), ss 387(a) and 392.

[14]Fair Work Act 2009 (Cth), s 604.

[15]Blair & Perpetual Trustee Co Ltd v Curran (Adams’ Will) (1939) 62 CLR 464 at 532; Jackson v Goldsmith (1950) 81 CLR 446 at 466.

[16]Blair & Perpetual Trustee Co Ltd v Curran (Adams’ Will) (1939) 62 CLR 464 at 532; Jackson v Goldsmith (1950) 81 CLR 446 at 460.

[17]Blair & Perpetual Trustee Co Ltd v Curran (Adams’ Will) (1939) 62 CLR 464 at 531-522.

[18]Cf Murphy v Abi-Saab (1995) 37 NSWLR 280 at 288 per Gleeson CJ.

[19]Cf Egri v DRG Australia Ltd (1988) 19 NSWLR 600 at 604 per McHugh JA, at 608 per Clarke JA; Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 at 95 per Doyle CJ.

[20]Blair & Perpetual Trustee Co Ltd v Curran (Adams’ Will) (1939) 62 CLR 464 at 532.

[21]Blair & Perpetual Trustee Co Ltd v Curran (Adams’ Will) (1939) 62 CLR 464 at 532-3 per Dixon J; Brewer v Brewer (1953) 88 CLR 1 at 15 per Fullagar J (Dixon J agreeing).

[22]Brewer v Brewer (1953) 88 CLR 1 at 15 per Fullagar J.

[23]On appeal, Parker v Garry Crick's (Nambour) Pty Ltd [2018] FWCFB 279 per the president Justice Ross, Deputy Commissioner Gooley, and Commissioner Johns.

[24]Russell v The Trustees of Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559 at [45].

[25]Addis v Gramaphone Co [1909] AC 488 at 491 per Lord Loreburn LC.

[26]Russell v The Trustees of Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559 at [55].  See also Thompson v Cavalier King Charles Rescue (Qld) Inc [2020] QSC 34 per Davis J.

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Editorial Notes

  • Published Case Name:

    Parker v Garry Crick's (Nambour) Pty Ltd & Anor

  • Shortened Case Name:

    Parker v Garry Crick's (Nambour) Pty Ltd

  • Reported Citation:

    (2024) 4 QDCR 1

  • MNC:

    [2024] QDC 20

  • Court:

    QDC

  • Judge(s):

    Morzone KC DCJ

  • Date:

    23 Jan 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Addis v Gramophone [1909] AC 488
2 citations
Jump To
Cite 1 - [1909] AC 488
Cite 2 - [1909] AC 488
Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353
2 citations
Jump To
Cite 1 - (1973) 130 CLR 353
Cite 2 - (1973) 130 CLR 353
Allesch v Maunz (2000) 203 CLR 172
2 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Blair v Curran (1939) 62 C.L.R., 464
9 citations
Jump To
Cite 1 - (1939) 62 C.L.R., 464
Cite 2 - (1939) 62 C.L.R., 464
Cite 3 - (1939) 62 C.L.R., 464
Cite 4 - (1939) 62 C.L.R., 464
Cite 5 - (1939) 62 C.L.R., 464
Cite 6 - (1939) 62 C.L.R., 464
Cite 7 - (1939) 62 C.L.R., 464
Cite 8 - (1939) 62 C.L.R., 464
Cite 9 - (1939) 62 C.L.R., 464
Brewer v Brewer (1953) 88 C.L.R., 1
3 citations
Jump To
Cite 1 - (1953) 88 C.L.R., 1
Cite 2 - (1953) 88 C.L.R., 1
Cite 3 - (1953) 88 C.L.R., 1
Civil Air Operations Officers Association of Australia v Airservices Australia [2020] FCA 1665
2 citations
Jump To
Cite 1 - [2020] FCA 1665
Cite 2 - [2020] FCA 1665
Egri v DRG Australia Ltd (1988) 19 NSWLR 600
2 citations
Jump To
Cite 1 - (1988) 19 NSWLR 600
Cite 2 - (1988) 19 NSWLR 600
GBAR (Australia) Pty Ltd v Brown (No 2) [2020] QSC 34
2 citations
Jump To
Cite 1 - [2020] QSC 34
Cite 2 - [2020] QSC 34
Jackson v Goldsmith (1950) 81 CLR 446
4 citations
Jump To
Cite 1 - (1950) 81 CLR 446
Cite 2 - (1950) 81 CLR 446
Cite 3 - (1950) 81 CLR 446
Cite 4 - (1950) 81 CLR 446
Kuligowski v Metrobus (2004) 220 CLR 363
2 citations
Jump To
Cite 1 - (2004) 220 CLR 363
Cite 2 - (2004) 220 CLR 363
Leggett v Hawkesbury Race Club Limited (No 1) [2021] FCA 1298
1 citation
Jump To
Cite 1 - [2021] FCA 1298
Maurice Blackburn Cashman v Brown (2011) 242 CLR 647
2 citations
Jump To
Cite 1 - (2011) 242 CLR 647
Cite 2 - (2011) 242 CLR 647
Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75
2 citations
Jump To
Cite 1 - (1997) 69 SASR 75
Cite 2 - (1997) 69 SASR 75
Murphy v Abi-Saab (1995) 37 NSWLR 280
2 citations
Jump To
Cite 1 - (1995) 37 NSWLR 280
Cite 2 - (1995) 37 NSWLR 280
Parker v Garry Crick's (Nambour) Pty Ltd [2018] FWCFB 279
2 citations
Jump To
Cite 1 - [2018] FWCFB 279
Cite 2 - [2018] FWCFB 279
Parker v Garry Crick's (Nambour) Pty Ltd [2017] FWC 4120
1 citation
Jump To
Cite 1 - [2017] FWC 4120
Queensland v The Commonwealth (1977) 139 CLR 585
2 citations
Jump To
Cite 1 - (1977) 139 CLR 585
Cite 2 - (1977) 139 CLR 585
Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559
3 citations
Jump To
Cite 1 - (2008) 72 NSWLR 559
Cite 2 - (2008) 72 NSWLR 559
Cite 3 - (2008) 72 NSWLR 559
Warren v Coombes (1979) 142 CLR 531
2 citations
Jump To
Cite 1 - (1979) 142 CLR 531
Cite 2 - (1979) 142 CLR 531

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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