The High Court has allowed an appeal against a decision of the New South Wales Court of Appeal relating to issue estoppel in the context of employment law. Tomlinson was injured while working at an abattoir operated by Ramsey Food. Tomlinson claims he was an employee of another company, Tempus Holdings Pty Ltd, during the time of the injury. Ramsey argued that he is issue estopped from making that claim on the basis that an earlier Federal Court proceeding brought by the Fair Work Ombudsman against Ramsey about wage entitlements resulted in a declaration by the Court that Tomlinson was employed by Ramsey Food at the time the injury occurred. The NSWCA held that while Tomlinson was not a party to the Federal Court proceedings, the Ombudsman had acted as his privy for the purposes of determining that issue, and that therefore he was estopped from denying that Ramsey was his employer.

The High Court allowed the appeal, holding that no issue estoppel arose because of an insufficient connection between the Ombudsman and Tomlinson. The joint judgment (French CJ, Bell, Gageler and Keane JJ) explained and contextualised the ‘comparatively narrow’ form that the privy in interest principle takes in Australia, reiterating that it requires that the privy make its claim ‘under or through’ the person of whom it is said to be a privy (see [17]ff). That specific principle flows from the higher-level maxim that ‘who takes the benefit ought also to bear the burden’ (see [29]ff). In this matter, the Ombudsman was not acting ‘under or through’ or ‘on behalf of’ Tomlinson’s entitlements or claims but rather was acting according to the Ombudsman’s statutory powers to commence proceedings to enforce the Workplace Relations Act (at [44]):

The Fair Work Ombudsman was not acting pursuant to his distinct power ‘to represent’ employees who are, or may become, a party to proceedings in a court. The orders for the payment of Mr Tomlinson’s entitlements were made, not in satisfaction of a claim asserted on behalf of Mr Tomlinson by the Fair Work Ombudsman as his representative, but pursuant to the power of the court to make such an order, which power arose when the court found that employees had not been paid their entitlements.

The joint judgment held that it was inappropriate to assess the issue of whether or not the evidence before the District Court established that Tomlinson was in fact employed by Ramsey and remitted that question to the Court of Appeal to determine. Nettle J also concluded that Tomlinson had no interest in the Ombudsman’s claim, and that the Ombudsman did not bring that claim ‘on account of or for the benefit of’ Tomlinson (see at [99]ff). Nettle J held, however, that the matter need not be remitted to the Court of Appeal: the District Court judge was right to hold that the Federal Court judge’s finding that Ramsey was Tomlinson’s employer did not estop Tomlinson from contending in the District Court that Tempus was his employer, in part because each proceeding involved different questions of statutory construction (see [125]–[133], and especially at [126]).