WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES GAYLE BALDING, WORKPLACE OMBUDSMAN

CLAIMANT

-v-

Liquid Engineering 2003 Pty Ltd (ACN 104 341 657)

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE P HOGAN

HEARD Wednesday, 21 May 2008

DELIVERED Wednesday, 21 May 2008

FILE NO. M 71 OF 2007

CITATION NO. 2008 WAIRC 00350

CatchWords Breach of Federal Award, Alleged abuse of process, No Case submission, Application to Reopen Case, No Evidence of Consent to Commence Litigation

Result Claim dismissed

Representation 

Claimant              Mr R Hassall (of Counsel) appeared for the Claimant.

Respondent  Mr G McCorry of Labourline – Industrial and Workplace Relations Consulting appeared as Agent for the Respondent

REASONS FOR DECISION

(Given extemporaneously at the conclusion of the hearing, extracted from the transcript of proceedings and edited by Her Honour)

1                     In this particular case the Claimant has closed its case.  The Agent acting for the Respondent has made a no case submission based on a number of different arguments, but the one I am addressing at the moment is in relation to the issue of consent to commence litigation.

2                     The Statement of Claim, amended and lodged this morning, makes it clear, as did the original Statement of Claim, that the Claimant was seeking an order that the Respondent pay a penalty.  It is clear that since certain payments were made by the Respondent in September and October of 2007 that the proceedings have continued solely pursuant to the penalty provisions of the Industrial Relations Act 1996 (the Act).  It is clear from the lodgment of the Respondent’s Outline of Defence on 5 March 2008 that the Respondent has alleged an abuse of process.

3                     The Claimant has taken care to set out its case in considerable detail in the affidavit sworn by Ms Gayle Balding on 20 March 2008.  It is clear that the provisions pursuant to which the penalty is sought, and the claim continued, are civil remedy provisions as provided for in section 727 of the Act.  Section 729 of the Act provides that:

A court hearing a proceeding under a civil remedy provision must apply the rules of evidence and procedure for civil matters.

4                     This Court must also, in my opinion, bear in mind that the claim before it is one that has the potential to result in the imposition of substantial penalties upon the Respondent. 

5                     Section 167 of the Act makes provision for workplace inspectors and sets out certain legislative requirements in terms of their appointment and powers.  Under section 167(7) the Minister is empowered by legislative instrument to give certain directions. Under subsection (8) a workplace inspector must comply with directions given under subsection (7).

6                     Under cross-examination today, the Agent for the Respondent has elicited evidence that at the time this litigation commenced, which was on 26 September 2007, there was in place a legislative instrument; i.e. a direction to inspectors as referred to in clause 7.1 of the current Litigation Policy of the Office of the Workplace Ombudsman.  That policy was not in place at the time that this litigation was commenced, but it is clear from a provision within that policy that the direction was in place as of 4 July 2007, and that that was a direction that the person, Ms Balding, who recommended the litigation, was aware of at the relevant time.

7                     There is no evidence before the Court that the consent which must be obtained prior to commencing litigation was, in fact, obtained and without such evidence the claim is flawed and must fail.  Counsel for the Claimant submits that as this had had not been taken as a procedural point prior to the hearing today, and that therefore the Claimant was not given an early opportunity to meet the issue, then that opportunity should be given now by the Court enabling the Claimant to reopen its case and call evidence on that particular point.

8                     The Respondent objects to that course. 

9                     The problem with that course is that the Claimant carries the burden of proving its claim and, as I see it, in circumstances where the issue of abuse of process was raised well before today, the onus was on the Claimant to prove its case in terms of establishing the basis for a penalty.  The burden of proving the abuse of process issue is, of course, one carried by the Respondent.  Nevertheless, it was an issue well and truly out in the open and one that the Claimant was expected to come to court prepared to meet.

10                The consent to commence litigation issue is not, of course, necessarily part of the abuse of process argument.  It is an issue that goes to the validity if the instigation of the litigation.  I consider, however, that because of the abuse of process issue it changes the complexion in terms of the presentation of the Claimant’s case.

11                In presenting her case the Claimant has overlooked an important aspect.  The Claimant has neither produced evidence of the consent required under ministerial direction, (required to be complied with under the legislation itself pursuant to section 167 of the Act) nor, indeed, has the Claimant produced the recommendation to litigate.  Again, one would not necessarily expect these matters to be addressed in a standard claim directed at penalty, but as I have said earlier, I think the complexion changes when there is an abuse of process issue raised by the other side.

12                The Claimant has closed its case.  The legislation, as I understand it, makes no provision which places the onus on a Respondent to raise such an issue as a procedural matter, as is the case in certain Acts providing for either criminal and/or traffic prosecutions.  Given those observations I do not consider it appropriate that the Claimant be permitted to reopen its case.

13                Accordingly, the end result is that I have agreed with the Agent for the Respondent’s submission that on that point alone the Claimant has failed to establish its claim and, having made those observations, I do not need to go on to consider the other issues raised by way of the no case submission.

14                There will be an order that the claim is dismissed.

PM Hogan

Industrial Magistrate