WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2012 WAIRC 00258

DELIVERED : Thursday, 29 March 2012

FILE NO. : M 10 OF 2012

CLAIMANT

-V-

James Plumridge

FIRST RESPONDENT

-and-

DAVID GORHAM

SECOND RESPONDENT

CatchWords : Claim alleging unspecified breach of the Industrial Relations Act 1979; Application to strike out the claim; Abuse of process; Whether the claim is within the Industrial Magistrates Court general jurisdiction; Capacity to bring the claim; Whether the claim was frivolously instituted; Role of court staff in accepting the claim for lodgement; Whether the court should refer the matter to police for investigation.

Legislation : Industrial Relations Act of 1979 section 81E, 81CA, 77, 80(1), 80(2), 83,83A,83E, 96J, 97V(3), 97VJ(3), 97YC, 97YG, 110, 111 and 112

  Justices of the Peace Act 2004

  Industrial Magistrates Courts General Jurisdiction Regulations 2005 regulation 15

Result : Claim struck out; Costs awarded to Respondent; Respondents application to refer matter for investigation dismissed

Claimant : Mr Gerald Claver Sturman appeared in person

Respondent : Mr James Plumridge appeared in person

REASONS FOR DECISION

(These are the reasons for decision which were delivered orally at the conclusion of the hearing and edited from the transcript of proceedings) 

The Claim

1         On 6 February this year Gerald Claver Sturman lodged an originating claim within this court’s general jurisdiction seeking orders that each named respondent pay a penalty.  The named respondents are David Gorham and James Plumridge.  In essence Mr Sturman alleges that:

•       Dr Plumridge has breached the Industrial Relations Act of 1979 (the Act) by appearing without authority at the pre-trial conference held by this court in the matter of Tainsh v Zigzag Ladies and Gents Hair Salon (M112 of 2010); and
•       Mr Gorham abrogated his obligations pursuant to the Justices of the Peace Act 2004 by permitting Dr Plumridge to appear at the said pre-trial conference.

2         On 2 March 2012 Mr Gorham lodged his response to Mr Sturman’s claim wholly denying it.  Dr Plumridge is yet to be served with the claim. However upon becoming aware of it he brought an application dated the 16th of March 2012 seeking the following orders:

1)      That Mr Sturman’s claim against him be struck out or be otherwise dismissed; and 

2)      That Mr Sturman pay his costs; and

3)      That this court refers to police for investigation Mr Sturman’s alleged criminal conduct.

3         On the 26th of March 2012 Mr Sturman lodged a notice of discontinuance with respect to his claim made against Mr Gorham. Pursuant to regulation 15 of the Industrial Magistrates Courts General Jurisdiction Regulations 2005 (the Regulations) the notice of discontinuance must be served in order to become effective.  There is no proof that it has been served on Mr Gorham.

Background

4         By reference to Tainsh v Zigzag Ladies and Gents Hair Salon (M112 of 2010) I will revisit the relevant history which gives rise to Mr Sturman’s claim.

5         Mr Sturman was, until the 6 June 2011, an Industrial Agent registered by the Western Australian Industrial Relations Commission.  In that capacity he represented Ms Tainsh.  The respondent was represented by a legal practitioner Ms Bairbre Lewis.  I understand engaged by Rural Community Legal Services Incorporated and that she worked for the Wheatbelt Community Legal Centre at Northam.  Mr Gorham had an association with those entitie.

6         In accordance with the Regulations the Clerk of Court arranged for a pre-trial conference to be held in that matter on the 6th of December 2010.  It did not proceed on that day and was adjourned to Monday 31 January 2011.  In various documents lodged in this matter it has been suggested that pre-trial conference was originally listed for 9 December 2010 and then adjourned to 21January 2011.  The court’s file does not reflect that to be the case.  In any event when on 31 January 2011 the Clerk of Court resumed the pre-trial conference at Northam, Ms Lewis was not in attendance. Ms Lewis did not attend because of illness. The Clerk of Court had previously rejected her application for a further adjournment of the pre-trial conference.  At the resumed pre-trial conference the respondent's principal, Lisa Raven, attended with Dr Plumridge, Ms Lewis’ husband.  In his affidavit in support of this application Dr Plumridge contends that he attended the pre-trial conference solely as a support person for Ms Raven as had been agreed by the Clerk of Court.  Mr Sturman and his client also attended.  With the parties unable to reach agreement, the pre-trial conference was concluded and programming orders were made. 

7         The matter was ultimately listed for trial.  At the trial on 25 May 2011 the parties entered into discussions which led to a settlement and eventually the claim was discontinued on 1 June 2011.

This Application

8         It is against the aforementioned background that I turn to consider the merits of this strike out application.  Notwithstanding that the claim has not, thus far, been served upon Dr Plumridge, he is not precluded from bringing this application or being heard with respect of it.  His application is properly before the court because he has an interest in the proceedings lodged against him by Mr Sturman.

9         I observe that Mr Sturman has brought the claim in his own right rather than any representative capacity.  I note that his ability to act in a representative capacity ceased on 6 June 2011.   He alleges a breach of the Act but has failed to specifically identify the provision which is alleged to have been breached. He asserts that because Dr Plumridge represented Ms Raven at the pre-trial conference he has somehow contravened the Act.  Leaving aside the issue of whether Dr Plumridge actually represented Ms Raven the only relevant provision of the Act which might have application to his claim is section 81E.  It 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.

10      Section 81E is an enabling provision.  It is not a penal or civil penalty provision. It cannot be the case that Mr Sturman is suggesting a breach of a penal provision given that his claim has been brought within this court’s general jurisdiction.  To come within this court’s general jurisdiction his claim must be made pursuant to one of the provisions set out in section 81CA (1) of the Act.  Relevantly it provides:

 81CA.  Procedure, enforcement etc.

  (1) In this section —

  general jurisdiction means the jurisdiction of an industrial magistrate’s court

11      that Ms Lewis was at that time under —

 (a) section 77, 80(1) and (2), 83(1) to (7), 83A, 83B(1) to (9), 83E(1) to

(8), 96J, 97V(3), 97VJ(3), 97YC, 97YG, 110, 111 or 112; or

  (b) Part IV of the Long Service Leave Act 1958; or

prosecution jurisdiction means the jurisdiction of an industrial magistrate’s court under —

  (a) section 83D; or

  [(b), (c) deleted]

(d) section 196(2) of the Children and Community Services Act 2004.

12      It is obvious that none of the provisions within this court’s general jurisdiction apply to this claim.  Sections 77, 80(1) and 80(2) are concerned with breaches of duties of officers of organisations.  Section 83 is concerned with the enforcement of instruments.  Section 83A concerns underpayment of employees.  Section 83B relates to unfair dismissals.  Section 83E is concerned with the contravention of a civil penalty provision of which section 81E is not.  Section 96J is concerned with freedom of association.  Sections 97V(3), 97VJ(3), 97YC and 97YG all pertain to employer/employee agreements. Section 110 deals with disputes between organisations and its members.  Section 111 relates to the taking of premiums for employment, and section 112 is concerned with organisational rules. None of those provisions can base this claim.  What is claimed falls outside of those sections and accordingly is not within this court’s jurisdiction.

13      Assuming that it could be found that Dr Plumridge represented Ms Raven at the pre-trial conference held on 31 January 2012 (although that is not supported by the court’s records) it does not follow that he has breached the Act.  Further even it could be said that Dr Plumridge has in some way breached the Act it does not follow that this court has the jurisdiction to deal with such a breach within its general jurisdiction. The fundamental difficulty with this claim is that it is outside of the court’s jurisdiction.

14      Another insurmountable difficulty faced by Mr Sturman in this proceeding is that he lacks standing.  He does not come within any of the categories of people permitted to bring proceedings in this court as is mentioned in relevant sections including sections 83 E(6) and 102A . He has made this claim in his own right rather than in any representative capacity.  Given that he was not directly affected by the alleged breaches he does not have and never has had the legal capacity to bring the claim. During the course of submissions Mr Sturman pointed out that because the word ‘may’ is used in all the relevant provisions that anyone can bring a claim.  He argues that the capacity to make a claim is not limited to those mentioned within the relevant sections. I disagree. If that were so then such provisions would be entirely superfluous and would have no meaning or effect.  “May” is used to enable any one of those people referred to in the relevant provisions to bring a claim.

15      In this matter the claimant has proceeded in way which appears to be totally misguided.  He cannot succeed.  His claim is an abuse of process and ought to be struck out.  It is apparent from the materials before me that by making this claim Mr Sturman has caused the respondents much distress, inconvenience and cost. 

16      Dr Plumridge seeks his costs of this application and the claim on the basis that the proceedings have been instituted frivolously or vexatiously or both.  The claim was made frivolously because it was brought without standing; it lacked merit and had no chance of success. It also sought orders outside of this court’s jurisdiction. The making of a claim without any proper legal foundation is not only frivolous, but is also of grave concern and ought to be discouraged.  It could be argued in this case that there is also a vexatious component to the claimant’s claim, but I need not decide that issue given that I have concluded that the claim has been instituted frivolously. Given that the claim is unmeritorious with no prospects of success in this jurisdiction, the respondent will be allowed his legal costs and any other reasonable disbursements incurred.

17      In the course of written submissions to this court Dr Plumridge criticised this court’s staff for having accepted the claim for lodgement.  In that regard I observe that it is not for this court’s administrators to assess the merits of any claim.  So long as the claim complies with the rules of court as to form and execution it must be accepted.  It would be wrong for the court’s administrators to assess the merits of the case.  That is not a matter for them.  They can only act as a gatekeeper with respect to form and procedure.  It would have been quite improper for the administrative staff not to have received the claim in this case.  Once lodged the claim is open to attack in the way in which Dr Plumridge has proceeded.  That is the proper way to deal with a claim which lacks foundation.  A court at its discretion may in those circumstances order costs. 

18      Further it is unfair, inappropriate and wrong for Dr Plumridge to have suggested in his written submissions that this court has in some way caused or perpetuated Mr Sturman’s acts.  This court does not descend into the arena.  It merely determines matters which are before it.  For that reason I will not refer Mr Sturman’s actions to police as is sought by Dr Plumridge. This court has not been called upon to determine whether or not an offence has been committed.  It is not for this court to cause an investigation to be held.  Again the court does not descend into the arena.  It is a matter for the parties to refer the matter to police if they or any one of them is of the belief that an offence has been committed.  I accordingly decline to make the order sought in paragraph 3 of the application. 

Orders

19      The following orders are made:

1)      The claim is struck out for want of jurisdiction. 

2)      The claimant shall pay Dr James Plumridge’s costs fixed at $200 to be paid within 28 days hereof. 

3)      Dr James Plumridge’s application dated 16 March 2012 is otherwise dismissed.

G. Cicchini

Industrial Magistrate