Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18 (28 February 2003)

Last Updated: 28 February 2003

FEDERAL COURT OF AUSTRALIA

Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18

KAZIMIR KOWALSKI -v- TRUSTEE, MITSUBISHI MOTORS AUSTRALIA LIMITED STAFF SUPERANNUATION PTY LTD ACN 064 829 616 and MITSUBISHI MOTORS AUSTRALIA LIMITED ACN 007 870 395

S 234 of 2002

RYAN, DOWSETT and SELWAY JJ

28 FEBRUARY 2003

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 234 of 2002

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	KAZIMIR KOWALSKI Appellant
AND:	TRUSTEE, MITSUBISHI MOTORS AUSTRALIA LIMITED STAFF SUPERANNUATION PTY LTD ACN 064 829 616 First Respondent MITSUBISHI MOTORS AUSTRALIA LIMITED ACN 007 870 395 Second Respondent
JUDGES:	RYAN, DOWSETT and SELWAY JJ
DATE OF ORDER:	28 FEBRUARY 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay each respondent's costs of the appeal, such costs to be taxed in default of agreement.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 234 of 2002

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	KAZIMIR KOWALSKI Appellant
AND:	TRUSTEE, MITSUBISHI MOTORS AUSTRALIA LIMITED STAFF SUPERANNUATION PTY LTD ACN 064 829 616 First Respondent MITSUBISHI MOTORS AUSTRALIA LIMITED ACN 007 870 395 Second Respondent

JUDGES:	RYAN, DOWSETT and SELWAY JJ
DATE:	28 FEBRUARY 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

1. There is before the Court an appeal from orders of Mansfield J of 17 September 2002 in Kowalski v Trustee, Mitsubishi Australia Ltd Staff Superannuation Fund Pty Ltd [2002] FCA 1153 pursuant to O 20 r 2 of the Rules of this Court that the application for relief against each of the respondents be dismissed with costs.

2. By an amended application filed on 10 January 2002, the appellant purported to invoke cl A19 and Section C of the Mitsubishi Motors Australia Staff Superannuation Fund Trust Deed and Rules and various sections of the Workplace Relations Act 1996 (Cth) as amended ("the WRA"). As explained later in these reasons, he also relied on Pt IV of the Federal Court Act 1976 (Cth) and the accrued jurisdiction of this Court. The substantive relief claimed by the amended application was in these terms;

"1. That the applicant's contract of employment was not frustrated on 16 March 1994 by operation of law before he was constructively dismissed on 27 October 1998, therefore, the Court must order the respondent's to make a payment to the applicant for the purpose of restoring the applicant to the same position that he would have been in if the first and the second respondents had complied with the terms and conditions of the Mitsubishi Motors Australia Limited (Supervisory and Technical Employees) Award 1987, the Mitsubishi Motors Australia Limited (Enterprise Agreement) 1993 [Print K9656] which was ratified by the AIRC on 27 January 1994 and the Mitsubishi Motors Australia Staff Superannuation Fund Trust Deed and Rules during the period from 16 March 1994 up to and including 27 October 1998. In other words to restore the applicant to the same position that he would have been in on 27 October 1998 if the second respondent did not discontinue to pay to the applicant all of his legally entitled benefits pursuant to his contract of employment and his award and if the second respondent did not discontinue to pay to the first respondent ongoing contributions, in respect to the applicant's membership to the Mitsubishi Motors Australia Staff Fund up to and including the date on which he was constructively dismissed on 27 October 1998.

2. That the second respondents has the onus of proof, therefore, it must prove that the applicant's employment was allegedly frustrated on 16 March 1994 by operation of law before the applicant was constructively dismissed on 27 October 1998.

3. The first and second respondent's have conspired against the applicant and they are continuing to conspire against him to prevent him from receiving all of his legally entitled benefits pursuant to the terms and conditions of his contract of employment and his award with the second respondent and to prevent him from receiving his legally entitled benefit in respect to his claim for a TPD benefit, that he made on 26 October 1998 pursuant to the Mitsubishi Motors Australia Staff Superannuation Fund Trust Deed and Rules, after he had suffered a heart attack on 26 December 1997 and after his open heart surgery and subsequent depression in January 1998 and to injure him."

3. There were also claims for what was called interlocutory relief set out in some further 11 paragraphs. Those paragraphs articulated, amongst other things, claims for declarations, the payment of "legally entitled benefits" and what were called "punitive damages." By reference to affidavits sworn in support of the amended application and the numerous documents exhibited to those affidavits, the learned primary Judge was able, at [10] of his reasons, to distil with some difficulty this summary of the appellant's claims against the first respondent, Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd ("the Superannuation Trustee");

"As against the Superannuation Trustee, the claim includes a claim for punitive damages for the loss of the applicant's entitlement to superannuation benefits "for a period of 14 years from the date that he was constructively dismissed on 27 October [1998] to the age of 65," and punitive damages for the loss of a Total and Permanent Disability Benefit (TPDB) to which he claims he was legally entitled by reason of his suffering a heart attack on 26 December 1997 and by reason of a depressive illness which developed in January 1998, and compensation for pain and suffering. He asserts having made a claim for TPDB under the Trust Deed and Rules on 26 October 1998, as well as for punitive damages for past economic loss and loss of superannuation benefits from 16 August 1991 to 27 October 1998. His affidavit in support of the Application includes reference to a letter from the Superannuation Trustee dated 20 August 2001 pointing out that the applicant did not claim total and permanent disablement in respect of the condition that actually caused him to cease work on 19 August 1991, and his claim made in 1998 was in respect of disablement following a heart condition in December 1997 that arose after his employment had ceased, so that he was at that time no longer a member of the Fund nor entitled to benefits under it in respect of that condition."

Consequently it would appear that before Mansfield J the claim against the superannuation provider raised a number of issues having little or no connection with the claim against the second respondent. As discussed below, on the appeal the appellant's description of his claim against the Superannuation Trustee may have been, at least in part, an alternative claim to the claim against the second respondent.

4. It is convenient to continue to call the second respondent, Mitsubishi Motors Australia Ltd, "the Employer" which is the expression by which it is designated in the reasons below where his Honour summarised the claim against the Employer in these terms;

"Against the Employer, the applicant claims compensation for pain and suffering, punitive damages for past economic loss and loss of superannuation benefits from 16 August 1991 to 27 October 1998, and punitive damages for future economic loss and loss of future superannuation benefits calculated from the date of his `constructive dismissal' to his reaching the age of 65."

5. It seems to be common ground that the appellant commenced employment with the Employer on 16 January 1964. As noted by the learned primary Judge, he last physically attended for work on 16 June 1991. Almost three years later, on 16 March 1994, the Employer notified him in writing in these terms;

"As you continue to be unfit for your normal duties with us, your contract of employment with the company is frustrated. On that ground, your contract of employment with the company is now at an end, and accordingly you are no longer required to report for work."

6. Shortly after he received that letter, the appellant's union, on 6 April 1994, notified the Australian Industrial Relations Commission ("the AIRC") of an industrial dispute said to arise from the termination of the appellant's employment. However, no dispositive order was ever made by the AIRC in relation to that alleged dispute. The learned primary Judge also noted that the appellant had, in 1998, pursued proceedings against the Employer in this Court invoking s 170EA of the Industrial Relations Act 1988 (Cth) as then in force. Those proceedings were dismissed for want of jurisdiction; see Kowalski v Mitsubishi Motors Australia Limited (1998) 88 FCR 55 ("Kowalski v Mitsubishi").

7. On 16 October 1998, the appellant instituted further proceedings against the Employer in the AIRC under s 170CE(1) of the WRA seeking reinstatement and compensation on the grounds that the termination of his employment had been harsh, unjust or unreasonable or discriminatory and had been effected without written notice to him. In that application, Mansfield J noted, the appellant asserted that his employment had been terminated in March 1994 which contrasts with the much later date which he now maintains. Shortly afterwards, the appellant and the Employer took part in a private mediation which resulted in a mediation agreement dated 27 October 1998 entitled "Heads of Agreement" which was signed by both parties. That agreement was in these terms;

"WHEREAS:

1. Kazimir Kowalski ("Kowalski")of 26 Nalimba Street Hallett Cove in the State of South Australia and Mitsubishi Motors Australia Limited (MMAL) of Sherriffs Road Lonsdale in the said state have on the 26th day of October 1998 entered into a mediation.

2. Kowalski and MMAL have entered the mediation with the intent of trying to resolve all issues both current and future in dispute between them.

3. Kowalski and MMAL have reached an agreement in relation to the resolution of all issues and wish to record the terms of settlement.

THE PARTIES HAVE AGREED THAT:

1. Kowalski on behalf of himself and his dependants hereby agrees to accept the sum of $200,000 in full and final settlement of any entitlements he may have to superannuation, sick leave, compensation and damages arising out of or in the course of his employment with MMAL. In particular, the said sum to be paid with a denial of liability, includes payment in full and final settlement of:

1.1 Any injuries or disabilities in respect of an eye injury in December 1986, a middle finger injury in May 1988, a back and or left leg injury in May 1989, stress or mental breakdown in August 1991 and a heart attack in December 1997.

1.2 Any outstanding sick leave.

1.3 Any matters related to the termination of his employment with MMAL

1.4 Any superannuation payable by the MMAL Staff Superannuation Fund.

2. The said sum of $200,000 is to be paid to Kowalski as follows:

2.1 The sum of $64,692.43 to be paid from the Superannuation Fund by way of an ill health benefit being the entitlement with respect to the period from 7 March 1970 to the date of cessation of his employment.

2.2 The sum of $125,308.57 to be paid by MMAL as an ex gratia payment as compensation for permanent disability impairing his future earning capacity arising from the injuries and disabilities mentioned above

2.3 The sum of $10,000 to be paid by MMAL in consideration of Kowalski forgoing any claims or future claims in any way arising from his employment

3. In consideration of the matters set out in paragraphs 1 and 2 above, MMAL agrees

3.1 To forgo recovery of legal costs which are owed by Kowalski and agrees not to seek repayment from Kowalski of monies previously paid by MMAL or the Superannuation Fund including the monies paid to R J Cole & Partners with respect to Action 185 of 1992 in the Industrial Court

3.2 To comply with any Court orders for discovery and or subpoenas for witnesses in relation to any action taken by Kowalski against RJ Cole & Partners

3.3 To maintain confidentiality in respect of all matters arising in the course of the mediation and of the terms of this agreement

3.4 To prepare and execute all documents necessary to bring into effect this agreement and to make such personal attendances as necessary at any Tribunal, Court or Commission.

4. In consideration of the matters set out in paragraphs 1 and 2 above, Kowalski and his dependants agree:

4.1 Not to institute any legal proceedings and or legal complaints with any Court, Tribunal or body in respect of the matters set out in paragraph 1 hereof nor to join MMAL as a defendant in the Action against R J Cole & Partners and, Dowd.

4.2 To maintain confidentiality in respect of all matters arising in the course of the mediation and of the terms of this agreement

4.3 To discontinue all actions and proceedings currently subsisting between Kowalski and MMAL

4.4 To execute all documents necessary to bring into effect this agreement and to make such personal attendances required at any Court, Tribunal or Commission

4.5 That any amounts payable to the Australian Taxation Office from the sum of $200.000 are to be borne by Kowalski.

5. The parties agree that payment of the sums in paragraphs 1 and 2 will be made in the following manner:

5.1 Fountain & Bonig are to make arrangements for all matters requiring personal attendance by the parties to achieve discontinuance of those proceedings to be called on and the parties shall thereupon attend and effect discontinuance of those proceedings

5.2 As to the matters which do not require personal attendance, Fountain and Bonig will prepare the necessary documentation for discontinuance or consent orders

5.3 Upon satisfaction of 5.1 above, Kowalski shall sign all documents prepared pursuant to clause 5.2 above whereupon bank cheques for the total sum of $200,000 are to be handed to Kowalski (less any taxation that must be deducted by the Superannuation Fund).

5.4 It is the intention of the parties that the terms of this agreement be given effect to as quickly as possible and within 14 days of the date of this agreement save where beyond the control of the parties because of the need to attend personally at any Court Tribunal or Commission."

8. It was found at first instance that all amounts required to be paid under the Heads of Agreement including the $64,691.43 from the Superannuation Trustee were paid on 9 November 1998. Despite the apparent intention of the appellant and the Employer that the Heads of Agreement should resolve all matters in issue arising from the appellant's employment, the appellant later commenced further proceedings against the Employer in the AIRC. The course of those proceedings is described at [19] of the reasons below;

"On 23 November 1999, the applicant commenced further proceedings against the Employer in the AIRC apparently again under s 170CE of the WR Act, seeking an extension of time to do so. The grounds on which the extension of time was sought included that the Heads of Agreement were not entered into in good faith by the Employer. On 20 November 2001 the AIRC dismissed the application. The Commissioner concluded the Heads of Agreement bound the applicant not to bring the proceedings, that there was no evidence to support the assertion that the Heads of Agreement was not negotiated in good faith, and that the employment relationship between the applicant and the Employer ended on 16 March 1994 and not by any constructive dismissal on 27 October 1998. An appeal from that decision was dismissed by the Full Commission of the AIRC on 1 March 2002. It upheld the finding the applicant's employment ceased on 16 March 1994. The AIRC therefore had no jurisdiction to entertain the application, as Part VIA of the WR Act, including s 170CE, commenced and applied only to terminations of employment occurring after 30 March 1994: see Industrial Relations Reform Act 1994 (Cth) and Workplace Relations and Other Legislation Amendment Act 1996 (Cth), Sch 7, item 17(1)."

9. As already mentioned the appellant in his submissions on the appeal described his claims against each respondent as alternative claims.

10. As against the Employer, the argument of the appellant consisted of a number of distinct, but interrelated steps:

(a) By virtue of an enterprise bargaining agreement ("EBA") concluded in January 1994 between the Employer and the appellant's union, the appellant became entitled to a higher rate of remuneration from the Employer although he did not become aware of that increased entitlement until after April 1994.

(b) The purported frustration of the employment contract was invalid, as the appellant still had sick leave outstanding and the contract could not be frustrated by reason of ill health whilst sick leave remained outstanding;

(c) By the time that the sick leave to which he was entitled had run out the amendments to the Industrial Relations Act proscribing termination of employment had come into operation on 30 March 1994. This would have meant that he could not be terminated on the grounds of ill health;

(d) The result, according to the appellant, was that he remained employed by the second respondent until he voluntarily accepted that the employment was at an end when he entered into the Heads of Agreement on October, 1998.

(e) The Heads of Agreement could not prevent him from getting his "statutory rights", namely his award entitlements (including remuneration at the higher rate prescribed by the EBA from the beginning of 1994) for the period when he was lawfully employed.

One interesting feature of this argument is that the appellant does not seek to attack the validity of the Heads of Agreement. He accepts that it is binding. He does not repudiate it. He has no intention of repaying the money paid to him under it. He merely says that the agreement cannot keep him from his entitlement to receive the moneys that are lawfully his, if those moneys exceed the amount payable under the agreement. From what one could understand, the appellant was asking the Court to calculate whether more was due to him by way of award and other statutory entitlements and under the Superannuation Deed than he had received pursuant to the Heads of Agreement and then to order that the excess (if any) together with such further sums as was sought should be paid to the appellant.

11. In answer to this the Employer argued that the appellant was subject to an issue estoppel. The learned primary Judge held that neither the judgment of this Court in Kowalski v Mitsubishi (supra) nor the decision at first instance in the AIRC of 20 November 2001 gave rise to an issue estoppel precluding the appellant from contending that his employment had been terminated later than 16 March 1994. That was because a termination on that date was not essential for the determination adverse to the appellant at which each of this Court and Commissioner McCutcheon in the AIRC had arrived. However, the learned primary Judge was persuaded that the conclusion of the Full Bench of the AIRC on appeal from Commissioner McCutcheon did create an issue estoppel as to the date of termination. His reasoning in support of that conclusion is to be found at [40] to [43] of the judgment appealed from;

"However, in my view, such a finding was a foundation for the decision of the Full Commission of the AIRC of 1 March 2002 on appeal from that decision. Its recital of the issues argued on the appeal indicate clearly the applicant argued the finding at first instance that he had been dismissed on 16 March 1994 was wrong, and that his employment continued until 27 October 1998. The Full Commission found:

"On our consideration of the materials and evidence before McCutcheon C and the Full Bench, McCutcheon C was correct in that the employment of the appellant came to an end on 16 March 1994.

This finding is supported by the 16 March 1994 letter from a representative of the respondent to the applicant:

`As you continue to be unfit for your normal duties with us, your contract of employment with the company is frustrated. On that ground, your contract of employment with the company is now at an end, and accordingly you are no longer required to report for work.'

In our view, the terms of the letter made it clear that the employment was at an end. It is immaterial whether the termination occurred as a result of frustration or at the initiative of the employer. The letter made it plain to the appellant that his employment was at an end and he was not required to report for work.

...

There is no doubt in our view that the employment ceased in March 1994, not October 1998, and the 16 March 1994 letter provides evidence that the date of termination was 16 March 1994."

Consequently, the Full Commission concluded that the application itself was beyond the jurisdiction of the AIRC. That was because s 170CE of the WR Act (under which the application was brought), which was introduced by the Industrial Relations Reform Act 1994 (Cth) operative from 30 March 1994, was expressly said to apply to terminations of employment occurring only on or after 30 March 1994: Item 17(1) of Sch 7 to the Workplace Relations and Other Legislative Amendment Act 1996 (Cth). The Full Commission did not therefore address the other reasoning of the Commissioner at first instance for refusing the application.

I observe that the AIRC is competently charged under the WR Act with giving a final judgment making an enforceable determination on such a matter. It has jurisdiction to finally decide rights as between employers and employees in proceedings under s 170CE of the WR Act, derived from the WR Act: see e.g. Administration of the Territory of Papua and New Guinea v Guba [1973] HCA 59; (1973) 130 CLR 353; Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13. See also the discussion by Branson J in Miller v University of New South Wales [2002] FCA 882 at [68] - [77].

It follows, in my judgment, that the applicant is now estopped against the employer from asserting that his employment with the Employer ceased other than on 16 March 1994, and from asserting that his employment continued until 27 October 1998."

12. Mansfield J held that the effect of that finding by the Full Commission was that the appellant was estopped from challenging its finding in these proceedings. We are not prepared to do so. It is clear that a party will be estopped from arguing that which has already been decided against him or her, even by a different court. This can also extend to decisions by a tribunal where such a tribunal has the capacity to make final and binding decisions: see Administration of the Territory of Papua New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353. The issue raised in this case is whether there can be any issue estoppel in respect of the determinations of a Commonwealth administrative body. Such bodies cannot exercise the judicial power of the Commonwealth. Can they nevertheless make a determination that is sufficiently "final" and "determinative" to give rise to an issue estoppel? There are two chains of authority. The first denies that they can. The relevant cases are discussed by Weinberg J in Bramwell v Repatriation Commission (1998) 158 ALR 623 at 635-637. The second says that they can, particularly where the power being exercised is very similar to judicial power: see Branson J in Miller v University of New South Wales [2002] FCA 882 at [68]- [77].

13. It is unnecessary for us to resolve these differences. What is absolutely clear is that the decision of an administrative tribunal in respect of a "jurisdictional fact" is neither conclusive, nor binding: see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179. The decision in this instance was given in relation to what was clearly a "jurisdictional fact" i.e. the question whether the termination of employment was on or before or was after 30 March, 1994. The decision of the AIRC on that matter could not be conclusive. Consequently the decision of the AIRC of 1 March, 2002 that the contract of employment was terminated on 16 March, 1994 does not have the effect that the appellant can not argue to the contrary in this Court. There is no issue estoppel.

14. However, independently of that conclusion, Mansfield J was persuaded that the agreement embodied in the Heads of Agreement estopped the appellant from alleging that his employment had subsisted beyond 16 March 1994. He noted that the appellant had not brought proceedings directly seeking to set aside the Heads of Agreement and had made no proposal to repay the $200,000 received thereunder. His Honour considered that repayment of that amount would be required as a condition of a court's allowing the appellant to assert a termination of his employment later than 16 March 1994 or otherwise going behind the Heads of Agreement. It was also noted that the Workers' Compensation Tribunal (SA) had declined to permit the appellant to go behind the Heads of Agreement to revive or pursue various claims for workers' compensation. Moreover, putting that determination to one side, Mansfield J said, at [47];

"But no evidence was adduced which could go the smallest distance towards establishing a ground upon which the Heads of Agreement might be set aside, or (as the applicant confined himself) upon which clauses 2.1 and 2.3 of the Heads of Agreement might be set aside."

15. As noted above, the appellant contended on the hearing of the appeal that he could not, by having entered into the Heads of Agreement, be taken to have contracted out of his statutory rights under the WRA. That contention was dealt with by Mansfield J in these terms, at [50];

"As noted above, s 298U of the WR Act empowers the Court to make orders against the Employer in certain circumstances. The applicant relies on s 298K and 298L as providing those circumstances. There is no material at all upon which the applicant could show that his dismissal from employment on 16 March 1994 was for any prohibited reason specified in s 298L. I am satisfied that he has no prospect of succeeding on such a claim. Moreover, and more significantly, Part XA of the WR Act including ss 298K, 298L and 298U was inserted into the WR Act by the Workplace Relations and Other Legislation Amendment Act: s 3 and Sch 15. The amendments took effect only after 25 November 1996. It does not apply with respect to the termination of the applicant's employment on 16 March 1994. The applicant cannot rely upon its terms in this proceeding.

The applicant's claim against the Employer at common law, in the face of the Heads of Agreement, has no prospect of success. Any rights he may have had against the Employer arising from the termination of his employment on 16 March 1994 are expressed in the Heads of Agreement, or alternatively became converted into rights under the Heads of Agreement. He has received the monies to which he was entitled under the Heads of Agreement. The Heads of Agreement clearly record an agreement that any rights of the applicant against the Employer arising out of or in the course of his employment are to be satisfied by the payment of a lump sum. It is "in full and final settlement" of his entitlements. There is no room for any reading down of its terms."

16. We agree. Indeed, we go further. The appellant's argument assumes that his rights are clear and uncontrovertible. But that is simply not true. At best they were fragile. Assuming, for example, that he could have established that his employment contract could not have been frustrated on 16 March 1994, that did not have the consequence that his employment could not thereafter be terminated. Indeed, the rights to reinstatement (which he attempted to pursue at the time) necessarily depended upon his employment having been terminated: see the discussion by von Doussa J in Fryar v Systems Services Pty Ltd (1994) 125 ALR 592. Consequently, assuming that he had been dismissed, the most that he ever had was a right to seek the exercise of a discretion that he be reinstated. The assumption that the appellant makes that he had a statutory right to be continuously employed and continuously paid at award wages by the second respondent from March, 1994 until October, 1998, notwithstanding that he did not present for work at all during that period and notwithstanding that he instituted various proceedings seeking orders for his re-employment, is a very large one.

17. In these circumstances to view the Heads of Agreement as simply involving some diminution of the appellant's statutory rights is to misunderstand the agreement reached. Plainly the appellant and the second respondent had litigation outstanding. Plainly enough each party was putting a particular position in that litigation. There were risks to each. True it is that statutory public rights cannot be waived or compromised. However, this does not prevent the parties from compromising litigation on foot and in contemplation, having regard to the various risks to the parties in that litigation. See e.g. Lieberman v Morris [1944] HCA 13; (1944) 69 CLR 69 at 80. That is clearly what occurred in this case. Indeed, the consideration received by the appellant would seem to be something over $250,000 if costs forgone are included. Having regard to the ordinary exigencies of litigation, and the particular risks that the appellant's arguments involved, many might think that the agreement was reasonably generous to him. However, as pointed out above, the appellant in his appeal did not seek to set aside or repudiate the Heads of Agreement.

18. It would appear that the appellant did attempt to challenge the agreement in his argument before Mansfield J. He argued that the contract was unenforceable for its interference with the jurisdiction of the courts. After rejecting the appellant's contention that cl 4.1 of the Heads of Agreement was a "Scott v Avery clause" which rendered the Heads of Agreement unenforceable, the learned primary Judge went on to distinguish Finch v Sayers [1976] 2 NSWLR 540 on which the appellant had placed considerable reliance. As to that case, his Honour said, at [55];

"... ... I do not consider that case advances the applicant's position. It concerned the proper construction of a deed for a superannuation fund, and consideration of the circumstances in which a contract of employment was brought to an end. It does not touch upon whether this Court has jurisdiction to entertain the applicant's claims against the Superannuation Trustee. It may touch upon the applicant's claims against the Employer, or more particularly as to whether he has rights against the employer by reason of the circumstances in which his employment came to an end on 16 March 1994. But, as I have found, any such rights were subsumed into the rights which he obtained under the Heads of Agreement. The Employer does not contest the proposition that, arguably, the applicant may have had such rights. Its position, which I have concluded is in effect irresistible on the material before me, is that any such rights are now contained in the Heads of Agreement."

19. After reiterating his earlier conclusion that the appellant was estopped from claiming against the Employer that his employment had not come to an end on 16 March 1994, his Honour said, at [56];

"If the termination of his employment at that time gave rise to any rights on his part, the evidence indicates that those rights were merged into the rights which he acquired under the Heads of Agreement. In my view, those matters do not support any contention that he now has any additional rights against the Employer beyond those reflected in the Heads of Agreement."

We agree.

20. It should also be pointed out that the appellant's claim against the Employer would seem to be based primarily upon the common law. Insofar as the claim seeks a remedy for unlawful termination of employment afforded by a Commonwealth statute, the WRA, this Court does not have initial jurisdiction. It may be that the appellant could plead some claim based upon the Trade Practices Act 1975 (Cth) but he has not yet done so. Nor during the appeal hearing was he able to identify the detail or nature of such a claim. Of course, the appellant is unrepresented and considerable allowance must be made for this. Presumably that is why Mansfield J did not base his reasons in relation to the Employer on any issue of jurisdiction.

21. This brings us to the appellant's claim against the Superannuation Trustee. The claim as argued before Mansfield J is described above. On appeal the appellant argued that if his employment had been terminated on 16 March, 1994 on the basis that the contract was frustrated by his inability to work, then he should have received a superannuation payment based upon him being permanently and totally disabled for work. Of course, this assumes that the contract could only have been frustrated if the appellant was permanently and totally disabled for work - an assumption which is plainly wrong. In any event, in pursuit of this "alternative claim" the appellant had, on 24 September 1999, commenced proceedings against the Superannuation Trustee before the Superannuation Complaints Tribunal alleging that the Superannuation Trustee had wrongly rejected his claim for payment out of the Fund of a TPDB. The Tribunal on 23 November 2001, dismissed that complaint for want of jurisdiction.

22. The learned primary Judge upheld the contention of the Superannuation Trustee that this Court had no jurisdiction to grant any of the relief sought by the appellant against it. His Honour carefully examined all of the statutory provisions which could conceivably afford the appellant a remedy against the Superannuation Trustee but concluded, correctly, in our view, that none of them was available. Moreover, having requested the appellant to identify what basis he had for seeking to claim against the Superannuation Trustee we are satisfied that no claim within jurisdiction could be made against it, as, for example, under the Trade Practices Act.

23. Mansfield J next examined the claim against the Employer for the purpose of considering whether it had a common substratum of facts with the claim against the Superannuation Trustee so as to make the latter respondent amenable to the accrued jurisdiction of this Court. His Honour concluded that the application of the principles enunciated by the High Court in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457 and Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570 did not support a finding of the requisite common substratum of facts between any "matter" involving the Employer which had arisen under the WRA and any claim against the Superannuation Trustee which could have arisen from the Trust Deed and the Rules.

24. Mansfield J concluded that the claims against the two respondents were "separate". That would seem to be a fair description of the two claims as they were described to him. It may overstate matters in relation to the claims as described on appeal. On the appeal the claims (or at least aspects of them) were described as alternative claims in that the claim against the Superannuation Trustee depended upon the appellant's employment having been terminated in March, 1994 whereas the claim against the Employer depended upon the termination having occurred in October, 1998. Other "connections" between the two claims included that the Superannuation Trustee may have been able to argue that it was entitled to share the benefit of an estoppel created in favour of the Employer by the Heads of Agreement. Nevertheless, the essence of the claims remains separate. The claim against the Employer is based upon the contract of employment as affected by the various statutory rights that the appellant refers to; the claim against the Superannuation Trustee is based upon the Trustee Deed and the law of trusts. Even on the claims as described on the appeal there is no "common substratum of facts" sufficient to found accrued jurisdiction.

25. His Honour next acknowledged that there might be considerable merit in alternative contentions on behalf of the Superannuation Trustee that it was entitled to the benefit of the Heads of Agreement not withstanding that it was not a party to them and that, by entering into them and accepting the payment from the Superannuation Trustee, the appellant was estopped from asserting any claim to further entitlement under the Trust Deed and the Rules. However, he declined to base the summary dismissal of the action against the Superannuation Trustee on either of those grounds. In conclusion, his Honour observed, at [64];

"I note the general allegation by the applicant of some form of conspiracy between the Superannuation Trustee and the Employer to prevent the applicant from receiving the benefits to which he claims to be entitled under the Mitsubishi Motors Australia Limited (Supervisory and Technical Employees) Award 1987, The Mitsubishi Motors Australia Limited (Enterprise Agreement) 1993, and the Trust Deed and Rules. No facts are identified or pleaded upon which any conspiracy could be made out. Nor could the Superannuation Trustee be directly liable to the applicant for any amounts under either the award or the enterprise agreement. I have dealt with the possibility of the Superannuation Trustee being liable to the applicant under the Trust Deed and Rules above. In my judgment, the general allegation of a conspiracy does not enhance the applicant's position in any way."

26. Having decided that the Court had no jurisdiction to entertain the appellant's claim against the Superannuation Trustee, the learned primary Judge dealt only briefly with that respondent's attack pursuant to O 20 r 2 on the action against it, observing at [59] to [60];

"[The Superannuation Trustee] did pay to the applicant the amount of $64,691.43 payable under cl 2.1 of the Heads of Agreement. I note that payment is expressed to be "by way of ill health benefit being the entitlement with respect to the period from 7 March 1970 to the date of cessation of his employment". On the proper construction of the Heads of Agreement, I have concluded that it is clear that the date of cessation of his employment is 16 March 1994. The Trust Deed and Rules are not in evidence. I am not able to conclude that it is beyond doubt that the applicant has no further entitlement to benefits under the Trust Deed and Rules simply by reason of cl 2.1 of the Heads of Agreement. However, I note that the applicant's complaint to the Superannuation Complaints Tribunal, inter alia, about the level of benefits he received was withdrawn by the Tribunal as notified to the applicant on 23 November 2001 and that, the applicant has not brought any appeal from that decision under s 46(1) of the Superannuation (Resolution of Complaints) Act, and it appears plain that he could not now do so.

The complaint by the applicant to the Superannuation Complaints Tribunal of 24 September 1999, and his application to the AIRC on 23 November 1999, both involved the claim that the applicant's employment with the Employer persisted until 27 October 1998. The issues of fact and law the applicant raised, to that extent, overlap with issues of fact and law he now seeks to re-ventilate in this proceeding. As noted, those issues were resolved adversely to the applicant. The material which the applicant has identified as making out his claim against the Superannuation Trustee is essentially the same as that relied upon in those two proceedings. The resolution of those issues in favour of the applicant, as he acknowledges, is fundamental to his present claims against the Superannuation Trustee succeeding. In my judgment, the applicant is foredoomed to fail on those issues. The relevance and weight of the applicant's material, in the context of other material which the Superannuation Trustee and the Employer have identified, has been addressed not simply in those two proceedings but variously in the other proceedings to which I have referred. It has uniformly been found not to lead to resolution of the issues in the way the applicant contends. The applicant has not suggested, to my mind, any feature of his material or of the approaches to it by decision makers, which could expose any flaw in the respective processes of reasoning. In the light of my conclusion on that score, I consider the claims against the Superannuation Trustee should in any event be dismissed under O 20 r 2 (1)(c) of the Rules: see Walton v Gardiner [(1993) [1992] HCA 12; 177 CLR 378] at 393; Development Assessment Commission v Macag Holdings Pty Ltd [2001] SASC 189; (2001) 80 SASR 104."

27. The analysis by Mansfield J of abuse of process in relation to the claim against the Superannuation Trustee would seem to be based upon his Honour's understanding that the claim against the Superannuation Trustee also depends upon the employment having ceased in October, 1998 rather than March, 1994. It is not clear that that is the case. In any event, on the appeal the appellant clearly put his argument against the Superannuation Trustee in the alternative: if he had been dismissed in October, 1998 then he was entitled to wages etc from the Employer; if he had been dismissed in March, 1994 then he was entitled to have his superannuation assessed on the basis that he was totally and permanently incapacitated.

28. In the light of his conclusion that there was no jurisdiction to entertain the action against the Superannuation Trustee and his view that the applicant had no prospect of success against the Employer, Mansfield J dismissed the application against each respondent. At the time of publication, on 17 September 2002, of the reasons from which we have already quoted extensively, he was minded to order simply that the appellant pay the Superannuation Trustee's and the Employer's costs of the application. However, after a further hearing on 17 September 2001, his Honour was persuaded to vary the costs order in favour of the Employer to provide that the appellant pay its costs taxed on a solicitor / client basis.

29. It is trite that an order for summary dismissal such as was made by Mansfield J in this case should not be made "except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.": General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, at 128-129.

30. For the reasons given above, it is unnecessary for us to agree with all aspects of His Honour's reasoning. However, in relation to the Employer we agree with Mansfield J that the executed Heads of Agreement provide a complete defence. In the absence of any disclosed basis for challenging that agreement the appellant has no prospects of success in his action and Mansfield J was correct to dismiss it. In relation to the Superannuation Trustee we agree that there is no jurisdiction to hear that claim and it should be struck out. Mansfield J was correct to make orders under Order 20 Rule 2 of the Federal Court Rules dismissing the action. The appeal should be dismissed. In relation to a short appeal like the present the difference between a respondent's solicitor and client costs and its costs taxed between party and party should not be great. In any event, we consider that an applicant whose claim has been struck out or summarily dismissed because "argument even extensive argument" as Barwick CJ said in General Steel Industries (supra) at 130 has demonstrated it to be untenable, should have an opportunity of testing those arguments on appeal without being exposed to a liability for costs on the higher scale. These remarks, of course, do not apply to appellants whose claims can be demonstrated by the most cursory argument to be futile. In the circumstances, we shall order only that the appellant pay the costs of the appeal of the Superannuation Trustee and the Employer, such costs to be taxed in default of agreement.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate:

Dated: 28 February 2003

	The appellant appeared in person.
Counsel for the First Respondent:	Mr D E Clayton QC
Solicitor for the First Respondent:	Thomson Playford
Counsel for the Second Respondent:	Ms R A Layton QC with Mr R Bonig
Solicitors for the Second Respondent:	Fountain & Bonig
Date of Hearing:	12 February 2003
Date of Judgment:	28 February 2003