When a res judicata plea can be raised

The First Hall of the Civil Court rejected  a plea that the issue being discussed was already decided upon in a judgment of the Court of Appeal, since it did not satisfy all the criteria of a res judicata plea.

This was decided by Mr Justice Joseph R. Micallef on 25 November, 2014 in Vito Domenico Benvenga -v- Direttur Generali Veterinary and Animal Welfare.

Mr Benvenga had filed a sworn application against the Director General, asking the court to condemn the defendant to pay him €32,370.92 in unpaid salaries and allowances between November 2001 and April 2013.

The Director General defended the action by stating that this issue had already been decided by the industrial tribunal and the Court of Appeal and therefore, is tantamount to res judicata. 

Mr Justice Micallef examined the facts of the case, where the unpaid salaries and allowances referred to the period between the decision given by the industrial tribunal ordering the plaintiff’s reinstatement with the department and the date of the Court of Appeal’s judgement, which confirmed the tribunal’s ruling. The plaintiff was employed with the department on yearly fixed term contracts since March 2006. In March 2011, Mr Benvenga was informed that his contract was not to be renewed. The industrial tribunal held that the plaintiff’s employment contract was converted into an indefinite contract and therefore should be reinstated within 20 days and awarded compensation of €8,000. The department appealed but lost. 

The plaintiff then proceeded to apply for his salaries and allowances from between the decision of the tribunal and the judgement of the Appeal.

The court held that for a res judicata plea to be successful, the defendant has to prove three elements: (a) the same object constituting the litigation (eadem res), (b) between identical parties (eadem personae) and (c) regarding a dispute which has already been the subject of a final judgement (eadem causa petendi).

The Court explained that the plea of res judicata is founded on public interest and is intended to secure those rights and obligations listed in a definitive judgment and therefore, avoiding conflicting judicial pronouncements. Also if a dispute is settled by a judgement and is final, then that judgment is final and irrevocable.

The Court pointed out that there was no contestation that the parties involved are identical to the proceedings held before the industrial tribunal. However, the identity of the object of the dispute was contested, since the defendant argued that what the plaintiff is claiming in this present action is the same subject matter as claimed in the industrial tribunal. This was in fact determined by the industrial tribunal and the Court of Appeal. The plaintiff disagreed, since he argued that the issues were different. The issue before the industrial tribunal was whether the dismissal was justified and in fact reinstatement was ordered. The amounts claimed in this action were never discussed before the industrial tribunal. 

Mr Justice Micallef agreed with the plaintiff that the claims were different as one was seeking for a declaration that the termination of employment was unjustified, while the present case deals with the payment of salaries after the tribunal’s decision was given. 

The Court also considered the third element required for a plea of res judicata to be successful, that of the identity of claims and here the court would have to examine whether the issue discussed in the second action was decided in the second action.

The court must consider not only what was discussed and decided upon but what ought to be discussed and decided upon and may have not been discussed for some reason or another. The rewording of the reasons to bring forward the second action does not extinguish the efficacy of the judgement in the former action.

On this note the defendant argued that since the tribunal did not rule that the plaintiff was entitled to remuneration for that period he was not reinstated then this was an obstacle for this action. The fact that the time spent before the Court of Appeal was in fact time he was not in employment and thus covered by the ruling. The plaintiff held that this could not have been the case because the present claim referred to a period after the decision of the industrial tribunal. The fact that the defendant appeals the tribunal’s decision did not mean that what had been ordered by the tribunal was only operative from the Court of Appeal’s judgement. Here again the Court agreed with the plaintiff.

The court then moved to dismiss the plea of res judicata and ordered that the case continue.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

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