WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2014 WAIRC 00995

DELIVERED : Wednesday, 10 September 2014

FILE NO. : M 38 OF 2011

CLAIMANT

AND

Director General, Department of Education

RESPONDENT

Catchwords : Failure to comply with Clause 10.3 of the Education Assistants’ (Government) General Agreement 2010; whether the Claimant should be permitted to reopen its case to lead evidence of multiple breaches.

Legislation : Industrial Relations Act 1979     

Instruments : Education Assistants’ (Government) General Agreement 2010

Cases Referred to

In Judgement : United Voice WA v Director General, Department of Education [2014] WAIRC 00324

Result : Application to reopen refused

Representation

Claimant : Mr S Millman (of Counsel), instructed by Slater & Gordon Lawyers, appeared for the Claimant

Respondent : Mr D Matthews (of Counsel), instructed by the State Solicitor for Western Australia, appeared for the Respondent

REASONS FOR DECISION

Background

1         I do not propose to repeat the history of this Claim, which is set out in United Voice WA v Director General, Department of Education [2014] WAIRC 00324 at paragraphs 1 - 4.

2         In my written reasons for decision, delivered on 16 April 2014, I said at paragraph 16:

“Given the circumstances, it is incumbent upon the Claimant to provide evidence of each particular alleged breach of Clause 10.3 of the Agreement.  Given that the Respondent has agreed that a breach of Clause 10.3 of the Agreement has occurred, constituted by various omissions, it is not appropriate to close the door on the Claimant’s ability to provide further evidence with respect to each alleged contravention.”

3         I followed by inviting the parties to consider reaching agreement with respect to the alleged contraventions of Clause 10.3 of the Education Assistants’ (Government) General Agreement 2010 (the Agreement).  I indicated that if an agreement could not be reached, a further hearing would need to be conducted to enable the receipt of evidence which would go to the proof of each breach of Clause 10.3 of the Agreement. The hearing was adjourned to 9 July 2014 for directions.

4         When the hearing resumed on 9 July 2014, the Respondent submitted that the Claimant should not be permitted to call further evidence, and advanced reasons for that submission.  I acknowledged at that time that my view that the Claimant ought to be permitted to lead further evidence, was arrived at in the absence of full legal argument on the issue.  With the agreement of both parties, I further adjourned the hearing in order to facilitate the receipt of written submissions with respect to that issue.

Submissions

Respondent

5         The Respondent submits that a careful reading of the transcript for each day of hearing reveals that the issues at trial were not limited to the construction of Clause 10.3 of the Agreement, and the imposition of penalties with respect to the admitted breaches.  The Respondent pointed out that this Court expressly rejected a split trial scenario in which the issue of the construction of Clause 10.3 was to be determined as a first step.  The Court held that all of the evidence was to be heard and the issues determined in one trial (Transcript-18 April 2012, pages 4 to 8).

6         The Respondent says that the transcript reveals that on 30 May 2012, the Claimant’s representative opened on the basis that the Court would hear all outstanding claims not admitted, and then pending such determination, reconvene to receive submissions on penalties (Transcript-30 May 2012, page 18).

7         The Respondent also observes that the Claimant’s representative is recorded (Transcript-30 May 2012, page 19) as saying in opening that it would seek to establish the Respondent’s non-compliance with Clause 10.3 and arrive at the number of breaches by mathematical calculation.  The Respondent contends the Claimant chose to run its case on the basis of establishing its interpretation of Clause 10.3 and then asking this Court to work out, as a matter of logic and mathematical calculation rather than evidence, the number of breaches.

8         It is submitted that what is now occurring is that the Claimant is seeking to reopen the hearing to lead further evidence to address problems it now encounters, as a result of the way it chose to run its case.  The Court should therefore not allow the Claimant to reopen the hearing to address the flaw.  It would, in the circumstances, be unfair to allow the Claimant to reopen.

9         Counsel for the Respondent concluded his submissions by saying:

“To summarise the cases, the equation is one of whether the principle of finality of proceedings is overcome by the need to avoid injustice.  In this case the claimant has chosen to run its case in a certain way.  Having learned at a later time that this cannot produce the results it wants in relation to penalty, the claimant now seeks to reopen its case to lead further evidence in an attempt to increase the quantum of the penalties available to this Court.  It is respectfully submitted that this is not an appropriate basis upon which to allow a party to reopen its case.”   

Claimant

10      The Claimant advances three reasons, as to why it should be permitted to call further evidence.  Those reasons are:

• what is proposed is that contemplated by the proceedings up until this point;
• it is consistent with the objects of the Industrial Relations Act 1979; and
• if it were not permitted to proceed in the way sought, all that would happen is that new proceedings would be commenced.

11      In support of its first reason, the Claimant points out that the issue now raised by the Respondent has not previously been advanced in this Court, nor on appeal.  Further, the Claimant refers to my findings delivered on 16 April 2014 (supra) in support of its position.

12      As to its second reason, the Claimant asserts that the statutory requirements under which this Court operates, requires the Court to ensure that cases are dealt with justly.  In view of the decision of the Western Australian Industrial Appeal Court (Director General, Department of Education v United Voice WA [2013] WASCA 287), the Claimant should not be prevented from leading further evidence.  Indeed, the Claimant submits that the avoidance of injustice would require it.  In short, because of the way the hearing has progressed, the Claimant has not yet put its evidentiary case for breach of Clause 10.3 of the Agreement.

13      The Claimant supports its third point by asserting that it will be prevented from seeking penalties for what has been determined to be a breach of Clause 10.3 of the Agreement.  In those circumstances, it would be perverse if the matter was not properly concluded.  Further, given that the issues will not have been finally resolved, it is highly likely that the Claimant would commence new proceedings which could not be the subject of objection, based on res judicata or issue estoppel. 

14      If the Claimant were to be prevented from calling further evidence it would be inconsistent with the objects of the Magistrates Courts Act 2004 and the Industrial Relations Act 1979, and would offend against the principles of good case management.

Conclusion

15      Following the receipt of submissions, I have re-read the transcript of the proceedings which were conducted on 18 April 2012 and 30 May 2012. That has revealed that my prior recollection of how the case was run, was incorrect. 

16      Indeed, the case was run as Counsel for the Respondent suggests.  The Claimant was aware that proof of the contravention or contraventions of Clause 10.3 of the Agreement was in issue.   In the circumstances the Claimant could have, and should have, called witnesses to prove each alleged breach of Clause 10.3 of the Agreement.  Rather, it made the conscious decision not to call witnesses in the belief that the Court could find the alleged breaches proven, by mathematical calculation.

17      Having chosen that path, the Claimant finds itself in difficulty with respect to proving the alleged breaches, and seeks to reopen. 

18      If it were permitted to do so, it would be unfair because it would be given a second opportunity to prove the case that it could have proven in the first instance.  The Claimant took its course as a matter of tactic and now seeks to rectify a potential flaw in its approach.

19      Regulation 5 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (the Regulations) requires this court to ensure that cases are dealt with justly. That applies to both parties.  If the Claimant is permitted to reopen it would not be in keeping with the requirements of Regulation 5(2) of the Regulations, which requires that cases are dealt with efficiently, economically and expeditiously.  Significant delay may well result.

20      The Respondent has admitted a singular breach of Clause 10.3 of the Agreement.  In light of what I said in my reasons delivered 16 April 2014, the effect of that admission is somewhat problematic.  It is not clear as to what I should make of the admission.  Despite that, it remains the case that I can deal with all outstanding issues based on the evidence that is before me.  The issues joined by the parties are capable of resolution on that evidence.

21      I will now hear from the parties as to the Orders to be made.

G CICCHINI

INDUSTRIAL MAGISTRATE