100424726

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES JUDITH POTTER

CLAIMANT

 -v-

 CLARK'S BREAD & PATISSERIE

RESPONDENT

CORAM  MAGISTRATE RH BURTON IM

DATE THURSDAY, 26 AUGUST 2004

FILE NO M 104 OF 2004

CITATION NO. 2004 WAIRC 12667

_______________________________________________________________________________ 

Representation

Claimant  Mr NJ Hodgson appeared on behalf of the Claimant (the Respondent in these proceedings).

Respondent Mr D Clarke of Senate Pty Ltd appeared on behalf of the Respondent (the Applicant in these proceedings).

_______________________________________________________________________________

Reasons for Decision

The Application

1         The Court has before it an interlocutory application which was filed on 14 July 2004 by Clark’s Bread & Patisserie (hereinafter referred to as the Applicant) which was the Respondent to the substantive claim.

2         By this application the Applicant seeks to have the substantive claim dismissed rather than it being allowed to be discontinued by the filing of a Notice of Discontinuance of Action.   The applicant also seeks to have an order made for costs incurred by the Applicant in preparing to defend what it says is a claim which was frivolously or vexatiously instituted by Judith Potter (hereinafter referred to as the Respondent).

3         The application was a straightforward one, but a number of issues were raised which I thought it appropriate to give consideration to and provide written reasons.

History of the Claim

4         The claim at first instance was filed on 14 May 2004.  It alleged that the Respondent was a casual worker who was due a sum of money representing an underpayment of entitlements due to her pursuant to the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (the Award).

5         The claim was made on behalf of the Respondent by Neville John Hodgson who describes himself on the claim form as a solicitor/agent.

6         The claim was served on 21 May 2004 and a response was filed on 28 May 2004.  The response alleged that the claim was frivolous, vexatious and a fraud as the Respondent was on worker’s compensation at the time as a result of an injury sustained while working at another bakery and further that the Respondent’s agent was complicit in the fraud.  Costs were claimed.

7         The Clerk of the Court, by letter dated 28 May 2004, scheduled the matter for a pre-trial conference on Monday 21 June 2004, however,the pre-trial conference did not eventuate because a Notice of Discontinuance of Action was filed and the Clerk formally concluded the matter.

8         On 14 July 2004 the applicant filed its interlocutory application with a supporting affidavit and the matter came before me on 11 August 2004.  At that time the parties each made a number of submissions, the answers to at least some of which may be of interest to agents who practice in this jurisdiction.

The Legislation

9         The claim was made pursuant to the provisions of the Industrial Relations Act 1979 (the Act) and the relevant sections of that Act are set out hereunder.

10     Section 81E provides:

81E.   Representation

  In proceedings before an industrial magistrate’s court a party may — 

 (a) appear in person;

 (b) be represented by an agent; or

 (c) be represented by a legal practitioner.

11     Section 83 relevantly provides:

83.   Enforcement of certain instruments

  (1) Subject to this Act, where a person contravenes or fails to comply with a provision of an instrument to which this section applies any of the following may apply in the prescribed manner to an industrial magistrate’s court for the enforcement of the provision —

  (a) …

  (b) …

(c) in the case of an award or industrial agreement, any organisation or association named as a party to it;

  (d) …

(e) any person on his or her own behalf who is a party to the instrument or to whom it applies;

  (f) ….

  (2) In this section —

  “instrument to which this section applies” means —

  (a)    an award;

  (b)    …

  (c)    …

  (d)    …

12     Section 83C provides:

83C.   Costs of enforcement orders

 (1) Subject to subsection (2), an order under section 83, 83A or 83B may be made in any case with or without costs, but in no case shall any costs be given against the Registrar, a Deputy Registrar, or an Industrial Inspector.

 (2) In proceedings under section 83 or 83B costs shall not be given to any party to the proceedings for the services of any legal practitioner or agent of that party unless, in the opinion of the industrial magistrate’s court, the proceedings have been frivolously or vexatiously instituted or defended, as the case requires, by the other party.

13     Finally, section 112A relevantly prescribes:

112A.   Registration of industrial agents

 (1) In this section a reference to carrying on business as an industrial agent is a reference to carrying on business as a person who does either or both of the following —

  (a) appears as an agent under section 31, 81E or 91;

  (b) provides advice or other services in relation to industrial matters.

(1a) Despite subsection (1), a reference to carrying on business as an industrial agent does not include —

  (a) carrying on business by an organisation, the Council, the Chamber or the Mines and Metals Association;

  (b) carrying on business as a person who acts as a bargaining agent within the meaning of section 42B(4); or

  (c) carrying on business as a person who —

 (i) appears in proceedings as provided by section 97WJ; or

 (ii) provides advice or other services in relation to industrial matters, in the capacity of a bargaining agent under section 97UJ.

(2) Except as provided under this section a person who, not being an industrial agent registered under this section or a legal practitioner, in any way carries on business as an industrial agent, or holds himself out as carrying on business as an industrial agent, commits an offence.

 Penalty: $2 000.

(3) For the purposes of section 123(3)(c) of the Legal Practice Act 2003 a person who is —

 (a)registered under this section;

(b) acting under a contract of employment for a person who is registered under this section; or

(c) an employee or officer of any organisation, the Council, the Chamber, the Mines and Metals Association, or a prescribed body or class of body, acting on behalf of that body,

is authorised to —

(d) appear for a party, person or body under section 31, 81E or 91; and

(e) provide advice and other services in relation to industrial matters.

…

The Applicant’s Submissions

14     It was submitted that the substantive claim should have been made through the Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch but I refute this contention as the substantive claim seeks to enforce an instrument, the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977, and in accordance with section 83(1)(c) of the Act that union is not a party to such award.  Neither of course is the Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch (the TWU), of which Mr Hodgson is an employee or officer.

15     It is axiomatic that it is not a union which is seeking to enforce the award, it is the Respondent, Judith Potter, represented by an agent, who is making the claim as she is entitled to do under section 83(1)(e) of the Act.

16     The Applicant alleged that Mr Hodgson was not a person who could represent the Respondent as he is not a registered Industrial Agent.  Clearly that submission must be rejected on the basis of the provision of section 112A(3)(c), (d) and (e).

17     The Applicant also pointed out that the Respondent was described in wages schedules which were obtained from Noonans Bakery Pty Ltd (exhibit A) as being subject to “Worker’s Compensation”.  The relevance of the notation “Worker’s Compensation” was not explained.  Some assertions were made from the bar table but I am far from clear as to what the ramifications are.  No evidence was called to clarify the matter so I take the matter no further.

18     For the above reasons the Applicant maintained that the claim was frivolously and vexatiously instituted and, rather than being allowed to be discontinued, should be dismissed with an award of costs to the Applicant.

19     The Applicant referred me to two authorities, the first being Hayman v Donald F Munro & Associates 83 WAIG 3666, a decision of my brother Industrial Magistrate Tarr which sets out the tests to be applied in determining whether a claim is frivolous or vexatious.  With respect, I agree with what is said in that case; one must look at all the circumstances of a case.  The second authority was Butler v St John of God Hospital 83 WAIG 3141 which I find to be of little relevance to this matter.

20     The Applicant alleged that Ms Potter had to go to another union because of her worker’s compensation claim being on foot at the time of her moonlighting which resulted in the alleged underpayment.

21     The Applicant sought costs of $700.00, which amount was not itemised or substantiated in any way.

The Respondent’s Submissions

22     The first proposition advanced by the Respondent was that there was now no matter before the Court to ground the Applicant’s interlocutory application because the substantive claim had been discontinued on 17 June 2004.  I reject this submission and find that the claim is still on foot for the purpose of the interlocutory application, but for no other purpose.  There has been a discontinuance of the claim by the filing and serving of the form after the Applicant had filed and served its response.  I find that in the usual case it is suitable merely to file and serve a notice of discontinuance, and the matter is left at that.  In a particular case, however, a Respondent to a claim may wish to have the claim dismissed to prevent a repetition of the claim.  On that basis and considering that there was no serious opposition to a proper disposal of the matter, I will order that the substantive claim be dismissed.

23     Mr Hodgson submitted that he could represent the Respondent in this Court, as could any individual, on the basis that no fee was charged to the Respondent.  Mr Hodgson maintained that he could and did represent Ms Potter on a pro bono basis.

24     This submission is clearly unsustainable in the light of the provisions of section 81E of the Act which states that before an Industrial Magistrate’s Court a party may appear in person; be represented by an agent (and this must be a registered Industrial Agent in accordance with section 112A of the Act) or be represented by a legal practitioner.

25     It was also submitted that the Respondent is a member of the TWU and, as Mr Hodgson is an employee or officer of that union, he can represent her before this Court.  I accept that submission.  The Respondent came to that union as a member of same, which she is entitled to be under freedom of association laws, and sought representation; which she received.

26     Mr Hodgson submitted that there was no evidence in relation to the matter of “Worker’s Compensation”, especially in relation to what were the ramifications regarding the Respondent having other employment.  He surmised that the Respondent may have been part of a rehabilitation programme.

Findings

27     I find that there is no reliable evidence that the Respondent was receiving worker’s compensation payments at the relevant time.  The Court should not speculate on what the notation “Worker’s Compensation” means in relation to the employment of the Respondent by the Applicant.  It is not open to me, on the same basis, to speculate on the matter of possible rehabilitation.

28     I find, after considering all the material, that the claim was not instituted frivolously or vexatiously.  The Respondent believed she had a cause of action and convinced Mr Hodgson, an employee or officer of a union with obvious knowledge of claims for underpayments, to assist her in the preparation and filing of her claim.  Subsequent to the filing and serving of the response, the matter was seen, for whatever reason, to be one without a chance of success and so it was discontinued.  In my view that is clearly the procedure envisaged by the Industrial Magistrates’ Courts (General Jurisdiction) Regulations 2000.  In that regard I find that the Respondent acted properly.

29     It is of little consequence but I consider, on the papers before me, that there may well have been a breach of the relevant award.

30     In my view there is nothing before me to suggest that Mr Hodgson was complicit in the claim, be it fraudulent or otherwise, and I so find.

31     Section 112A of the Act allows an employee or officer of a union to act as an Industrial Agent, especially in respect of members of the same union.  Although there is no evidence to substantiate it, I accept that the Respondent was a member of the TWU and I find that Mr Hodgson could appear for her and “provide advice and other services in industrial matters” (section 112A(3)(e)).

32     Finally I make a finding that the law is that there is no requirement for consent to be given to a discontinuance of any claim or defence.  I am also of the view that anyone can join a union.

Conclusion

33     Consequent upon my findings, the outcome of this matter must be that the claim for costs will be refused but the application to have the substantive claim dismissed will be allowed.

34     Accordingly there will be an order dismissing the claim in matter No M 104 of 2004 and otherwise the interlocutory application filed on 14 July 2004 will be dismissed.

RH Burton

Industrial Magistrate