Tomvald v Toll Transport Pty Ltd [2018] FCA 969

Tomvald v Toll Transport Pty Ltd [2018] FCA 969

Relief sought by the applicant in respect of a conversion entitlement to a particular pattern of hours or start time (4.00 am) was conclusively determined against him in the prior proceeding. The claim must be struck out as an attempt to relitigate a matter previously settled. However, claims based on breaches arising after the conversion to permanent employment, including utilization of part-time/casual employees, adverse action, and misrepresentation, are not precluded as they relate to rights newly acquired as a permanent employee and events subsequent to the prior judgment.

Parties
Applicant: Joshua Wayne Tomvald; First Respondent: Toll Transport Pty Ltd; Second Respondent: Guy Barnard
Jurisdiction
Australia
Judgment Date
29 June 2018
Procedural Posture
Interlocutory Application / Application to Strike Out Pleadings or Dismiss Proceedings
Outcome
Application to strike out pleadings granted partially—first claim struck out, remaining three claims may proceed
Legal Topics
Enterprise Agreement Conversion, Adverse Action, Pleadings Strike Out, Issue Estoppel, Res Judicata, Abuse of Process
Employment Industrial Law Enterprise Agreement Conversion Adverse Action Pleadings Strike Out Issue Estoppel Res Judicata Abuse of Process

Case Brief

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Parties

Joshua Wayne Tomvald

Applicant

Toll Transport Pty Ltd

First Respondent

Guy Barnard

Second Respondent

Procedural Posture

Interlocutory Application / Application to Strike Out Pleadings or Dismiss Proceedings

Legal Issues

  1. 1 Whether the applicant can litigate matters already determined or which should have been determined in a prior proceeding
  2. 2 Whether the second proceeding gives rise to res judicata, issue estoppel, or abuse of process
  3. 3 Whether alleged breaches of enterprise agreement and adverse action arise out of events after the prior judgment

Ratio Decidendi

Relief sought by the applicant in respect of a conversion entitlement to a particular pattern of hours or start time (4.00 am) was conclusively determined against him in the prior proceeding. The claim must be struck out as an attempt to relitigate a matter previously settled. However, claims based on breaches arising after the conversion to permanent employment, including utilization of part-time/casual employees, adverse action, and misrepresentation, are not precluded as they relate to rights newly acquired as a permanent employee and events subsequent to the prior judgment.

Court Disposition

Application to strike out pleadings granted partially—first claim struck out, remaining three claims may proceed

Orders

  • Within 14 days, counsel confer regarding mediation and furnish draft orders giving effect to judgment
  • Within 21 days, parties furnish draft orders for future conduct of proceedings