WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2014 WAIRC 01359

DELIVERED : WEDNESDAY, 17 DECEMBER 2014

FILE NO. : M 150 OF 2014

CLAIMANT

AND

COMMISSIONER OF POLICE

RESPONDENT

Catchwords : Allegation that the Respondent has failed to comply with the Western Australian Police Service Enterprise Agreement for Police Act Employees 2003; Claim alleging non-payment of wages in the amount of $30,000.00; Claim for $30,000.00 plus interest; Interlocutory application seeking dismissal of Claim on the basis that the Claim is statute barred.

Legislation : Industrial Relations Act 1979

  Limitations Act 2005

  Industrial Magistrates Courts (General Jurisdiction) Regulations 2005

Instruments : Western Australian Police Service Enterprise Agreement for Police Act Employees 2003

Cases referred to

in Decision : Allison Pty Ltd (ACN 056 940 437) T/as Pilbara Marine Port Services -v- Lumley General Insurance Ltd

  [2004] WASC 99

Result : Application granted

  Claim dismissed

Representation

Claimant : Mr P Mullally (Agent), of Workclaims Australia, appeared for the Claimant/Respondent

Respondent : Ms S Teoh (Counsel), instructed by the State Solicitor for Western Australia, appeared for the Respondent/Applicant

REASONS FOR DECISION

 The Claim

1         Mr Peter Milford Weston (the Claimant) was a Police Officer from April 1978 until he resigned on or about 30 May 2006.  At the time of his resignation he had achieved the rank of Sergeant.

2         On 15 December 2005, he was incarcerated on remand at Casuarina Prison.  That same day, he was suspended from his position without pay.  He remained in custody until 12 April 2006.

3         On 22 September 2014 he lodged this Claim seeking that the Commissioner of Police (the Respondent) pay him $30,000.00 plus interest with respect to the non-payment of his wages for the period that he was in custody, and leading to his resignation. 

4         The Claim is brought pursuant to section 83(1) of the Industrial Relations Act 1979 (IR Act).

5         He alleges that the Respondent has, in unilaterally withdrawing his wages, failed to comply with an industrial instrument, namely the Western Australian Police Service Enterprise Agreement for Police Act Employees 2003.

6         The Claimant asserts that there was no legal foundation for the  Respondent’s decision to stop paying him.

Response

7         The Respondent opposes the Claim. 

8         The Respondent pleads in his Response lodged 10 October 2014, that the Claim is statute barred.

9         Further and in any event, the Respondent says that the Claimant had no entitlement to the payment of wages whilst he was unable to work due to his incarceration.

Application for Dismissal of Claim

10      On 5 November 2014, the Respondent made an Application seeking that:

1. the Claimant’s Claim be dismissed on the basis of no jurisdiction; and
2. the Claimant pay the Respondent’s costs of the proceedings on the basis that the Claim has been instituted frivolously or vexatiously.

11      The Application is supported by the Affidavit of Antony Richard Clark, affirmed on 4 November 2014.  Mr Clark is the Acting Assistant Director of the Workplace Relations Branch for the Respondent.  It suffices to say that Mr Clark’s Affidavit is limited as to its factual content.  His Affidavit contains a number of legal submissions.

12      The Claimant has not lodged an Affidavit in response to the Respondent’s Application but made oral submissions at the hearing of the Application.

13      In essence, the Respondent says that the Claim is fundamentally flawed because it is out of time.  In that regard he observes that subsections 83A(1) and (2) of the IR Act provide:

 “83A. Underpayment of employee, orders to remedy

 (1)  Where in any proceedings brought under section 83(1) against an employer it appears to the industrial magistrate’s court that an employee of that employer has not been paid by that employer the amount which the employee was entitled to be paid under an instrument to which that section applies the industrial magistrate’s court shall, subject to subsection (2), order that employer to pay to that employee the amount by which the employee has been underpaid.

  (2)  An order may only be made under subsection (1) —

 (a)  in respect of any amount relating to a period not being more than 6 years prior to the commencement of the proceedings; or

   …”

14      The Respondent submits that pursuant to section 83A(2)(a) of the IR Act, this Court cannot make any Order with respect to an underpayment having occurred more than six years prior to the commencement of the proceedings and further that there is no provision within the IR Act that enables time to be extended.

15      The Respondent submits further that it is erroneous for the Claimant to rely on the Limitation Act 2005 (Limitation Act) as a vehicle to extend time. 

16      Section 9 of the Limitation Act provides:

 “9. Limitation periods under other written laws

 (1) This Act (except section 28(3) and (5)) does not affect the operation of a limitation provision in another written law, or anything done under such a provision.

 (2) In subsection (1) —

  limitation provision includes —

 (a) a provision that establishes, modifies, or extinguishes a cause of action or a defence to a cause of action;

 (b) a provision prescribing the time within which an action can be commenced (including a law providing for the extension or shortening of that time);

 (c) a provision in respect of the limitation or exclusion of liability or the barring of a right of action if an action is not commenced within a particular time limit.”

17      Given that section 28(3) and section 28(5) of the Limitation Act relate to taxation matters they can have no application in this matter.

18      The Respondent asserts that given what is said in section 9 of the Limitation Act, the express provisions of section 83A(2) of the IR Act cannot be overridden.  In any event, the Claimant cannot bring himself within any of the other provisions of the Limitation Act which would otherwise permit an extension of time.

19      In response to the Application, the Claimant says that the limitation issue should not be determined as a preliminary point.  He says that his Claim must be considered in its complex factual matrix.  Such includes a significant amount of communication which may produce evidence of acknowledgement and/or evidence that the Claimant may have been suffering from a mental disability which will, pursuant to section 35 of the Limitation Act have the effect of suspending time for the purpose of calculating a limitation period.

20      The Claimant says that the limitation issue is factually inextricably mixed with the other issues to be considered and determined, and that any determination of the limitation issue, without context to the evidentiary matrix, will be premature, inappropriate and may lead to an injustice.

Determination

21      Regulation 5 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (IMC Regulations) provides:

 “5. Court’s duties in dealing with cases

(1)               A Court is to ensure that cases are dealt with justly.

(2)               Ensuring that cases are dealt with justly includes ensuring —

  (a) that cases are dealt with efficiently, economically and expeditiously;

  (b) so far as is practicable, that the parties are on an equal footing; and

  (c) that a Court’s judicial and administrative resources are used as efficiently as possible.”

22      Regulation 7 of the IMC Regulations gives this Court wide power to achieve those ends.  Those powers include the dismissal of a Claim on the hearing of a preliminary issue (see regulation 7(1)(j) of the IMC Regulations).  The Claimant should not be permitted to proceed further with this Claim if he cannot possibly succeed. 

23      I am conscious that a limitation point should not be determined on an interlocutory application, except in the clearest case.  In this regard, I refer to Allison Pty Ltd (ACN 056 940 437) T/as Pilbara Marine Port Services -v- Lumley General Insurance Ltd [2004] WASC 99, at paragraph 19.

24      In my view, this is such a case. 

25      The Limitation Act is an Act to provide for time limits for commencing civil legal proceedings and arbitrations, and for related purposes. It applies to all civil actions in which limitation periods are not otherwise provided for.  Section 9(1) of the Limitation Act makes it clear that the Act does affect the operation of a limitation provision in another written law, or anything done under such a provision.  It follows therefore, that the Limitation Act can have no application to the limitation expressed in section 83A(2)(a) of the IR Act, relating to proceedings brought under section 83(1) of the IR Act.

26      Whether the Claimant can recover the amount that he alleges he has been underpaid, is entirely governed by sections 83 and 83A of the IR Act.  Section 83A(2) expressly prohibits the making of an Order in respect to any amount relating to a period more than six years prior to the commencement of proceedings.  The provision is strict and there is no ability to extend time.

27      Given that the Claimant’s Claim relates to a period more than six years before the making of his Claim, there is no ability for this Court to make the Orders sought by the Claimant.  To allow the Claimant to proceed would be contrary to that which is required by regulation 5 of the IMC Regulations.

28      I propose to grant the Respondent’s Application and dismiss the Claimant’s Claim.

G. CICCHINI

INDUSTRIAL MAGISTRATE