100423482

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES EMA ALVAREZ OLIVARES AND JOSE ROGELIA A ACOSTA

CLAIMANTS

 -v-

 BRYAN FRANCIS STOKES AND GERRY FRANCIS BRODERICK

RESPONDENTS

CORAM MAGISTRATE RH BURTON IM

DATE WEDNESDAY, 9 JUNE 2004

CLAIM NO/S M 3 OF 2004 AND M 4 OF 2004

CITATION NO. 2004 WAIRC 11790

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Representation

Claimants  The Claimants appeared in person.

Respondents   The Respondents appeared in person.

Mr R Andretich (of Counsel) of the State Solicitors Office appeared for the Registrar of the Western Australian Industrial Relations Commission and his Executive Assistant

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Reasons for Decision

(Given orally during and at the conclusion of the proceedings, extracted from the transcript of proceedings and edited by His Worship)

1         These are complaints made under regulation 12(1)(a) and (b), and regulation 12(2) of the Industrial Relations (Industrial Agents) Regulations 1997 (the regulations).  Essentially the claims are to have Mr Stokes and Mr Broderick deregistered as industrial agents.  I note for the record that Mr Stokes has said that he is no longer on the register of industrial agents so that probably solves that part of the problem.

2         The relevant parts of regulation 12 of the regulations are in the following terms:

Complaint

 12. (1) Any person may lodge with the Registrar a written complaint alleging that — 

(a) the registration of an industrial agent may have been improperly obtained; and

(b) at the time when the application for registration of an industrial agent was granted, there may have been grounds for refusing the application.

(2) A client of an industrial agent may lodge with the Registrar a written complaint alleging that the industrial agent may have failed to comply with a condition to which the registration was subject.

(3) A complaint under subregulation (2) is to be lodged within 28 days of the client becoming aware of the facts of the matter giving rise to the alleged failure to comply or, if the Registrar is satisfied that the circumstances of the complaint are exceptional, within such later time as the Registrar may allow.

3         In passing I make the comment that it would appear that regulation 12(1) relates to a person who has become an agent and then, later on, particulars are discovered which show that he should never have been registered.  Say, for instance, he lied or he produced something that was untrue, and thus he obtained registration.  That is why there is no time limit attached to that regulation.

4         In relation to regulation 12(2), that is something an agent does have to face, once he has been registered, in relation to a client he may represent.  The client says, “Mr Stokes or Mr Broderick, you’ve done something wrong” and they then complain.  In that case the time limit mentioned in regulation 12(3) would apply.

5         I have let Mrs Olivares represent Mr Acosta.  I have done that because she was allowed to do that before the Full Bench, and I think it is proper she did.  As a preliminary point I noticed that Mr Broderick appeared as agent for the Respondent, Bryan Francis Stokes, in both complaints.  Initially I thought that was improper in the case of complaint No M4 of 2004 as it involved both Mr Stokes and Mr Broderick as Respondents, but I have decided that that is not the case.  I decided that each of the Respondents knows the other’s case and there is no conflict of interest, and they both wish to remain registered.  Although I have now been told that Mr Stokes is not registered, no doubt Mr Broderick still wishes to remain registered.

6         In relation to complaint No M 4 of 2004, that involves both Mr Stokes and Mr Broderick and there is therein a complaint under regulation 12(2).  I decide that these issues have already been litigated and disposed of in the decision of Industrial Magistrate G Calder in Acosta v Broderick and Stokes 83 WAIG 986.  I agree with that decision.

7         Having said that, there is a time limit for commencement of proceedings that is set out in regulation 12(3) and there is no evidence of an extension of time being granted by the Registrar.

8         I note that Mr Stokes was struck off the roll of legal practitioners on 6 August 1992.  That is almost 12 years ago.  The Claimants were sent a copy of the decision of the Full Court to strike off by the Legal Practitioners Complaints Committee on 26 June 2003.  This complaint was lodged on 6 January 2004, so the complaint is made well after the event.

9         In relation to complaint No M 3 of 2004, there is no time limit on the making of a complaint under 12(1)(a) as I have mentioned previously.  Complaint No M 3 of 2004 is against Mr Stokes alone, and is made under regulations 12(1)(a) and (b).  In my view, if you look at regulation 12 set out above, it would make more sense, or even just sense, if 12(1)(a) was deleted.  That would allow for the situation where registration was improperly obtained to be dealt with under regulation 5(1).

10     If grounds for refusing registration were later found, regulation 12(1)(b) would be appropriate.  There has been an inquiry by the Registrar under regulation 14(1) that improperly involved conciliation: see Acosta v Stokes and Broderick (supra).  I note that that complaint and decision only dealt with regulation 12(2)..

11     The Registrar has issued a certificate under regulation 16(3) relating to M3 of 2002.  That permits the Claimants to lay a complaint under regulation 17.  That certificate is probably invalid.  I come to that conclusion because regulation 17(4) states:

“The Industrial Magistrate is to make a determination as to whether or not, on the balance of probabilities, the industrial agent has failed to comply with the condition subject to which the agent was registered.”

12     That is a regulation 12(2) matter, and not a matter relating to the propriety of the initial registration.  Regulation 17(5) gives the Industrial Magistrate options of reprimanding the agent or cancelling the agent’s registration in a regulation 12(2) situation, not in a regulation 12(1) situation.

13     The situation here is a bit like having a bell without a clapper.  A complaint can be made, but there is no remedy.

14     Having carefully read the regulations, I also come to the conclusion that the Registrar is to determine a complaint under regulation 12(1), and he may cancel the industrial agent’s registration under regulation 15(2).  It appears that there is no appeal to the Industrial Magistrate’s Court as regulation 19 only permits an appeal in regulation 12(2) situations.

15     If it is relevant, I would come to the conclusion that the Registrar's decision should stand.  The Registrar obviously knew of Mr Stokes' background, both when Mr Stokes was registered, and when dealing with the matter that subsequently lead to the proceedings before Calder IM (supra).  He was struck off the roll of practitioners in 1992 and the Registrar was aware of that.

16     I come to the conclusion that being struck from the roll of practitioners is not prima facie proof that one should not be registered as an industrial agent.  I find, however, that the incident of forgery relating to an official document would have to go close to establishing such a reason.

17     I make the comment that the regulations are not terribly well arranged or drafted and endorse the comments of Calder IM in his previous decision (supra).

18     For the assistance of the Claimants I record that there is no right of appeal to an Industrial Magistrate from the Registrar's decision under regulation 12(1) so, therefore, for those reasons I find that the respective complaints are incompetent.

19     In relation to the question of costs, regulation 17(6) provides:

If proceedings are initiated against an industrial agent and no finding is made against the industrial agent, the industrial magistrate may order the complainant who initiated the proceedings to pay all or parts of the costs of that industrial agent in respect of the proceedings and such sum, not exceeding $500, as the industrial magistrate may fix in or towards defraying the costs of the proceedings.

20     I decide that it is proper that there should be an order for costs and I do so because, first of all, Mrs Olivares was never a client of the industrial agents.  Secondly, one of the complaints was made out of time.  Thirdly, Mr Stokes is now no longer on the register of industrial agents, and fourthly, the costs themselves are not unreasonable.  The regulation 12(2) matter had already been dealt with, and there is no penalty applicable to the regulation 12(1) matter.  For those reasons there will be an order for costs of $1,500.00.

21     In each of the complaints I order the maximum amount to be paid to the industrial agents.  In relation to complaint No M 3 of 2004, Mr Stokes will be awarded costs of $500.00.  In complaint No M 4 of 2004 both Mr Stokes and Mr Broderick will be awarded costs of $500.00 each.

22     It should be recorded that during the proceedings I ordered costs in the amount of $2,000.00.  That amount was stated because I mistakenly believed that both the industrial agents were involved in each complaint.  Having recourse to the respective files I realise that Mr Broderick was not named as a Respondent in complaint No M 3 of 2004 and is not entitled to more than the $500.00 awarded to him in complaint No M 4 of 2004.

23     Finally I include for the record my conclusions in relation to the challenge to the validity of the Summons to Witness forms served on the Registrar and his Executive Assistant.  For the reasons set out in Zanatta v McCleary (1976) 1 NSW LR 231 I confirm that one cannot question a judicial officer regarding evidence which comes into his possession in the course of his duties nor can he be cross-examined regarding the reasoning process.  Because the Claimants were seeking to do those very things I accordingly found that the summonses should be struck out and the witnesses excused.

24     Orders will issue in relation to the payment of costs by the Claimants and dismissing the complaints.

RH Burton

Industrial Magistrate