The Full Bench has dismissed an appeal that was lodged by a single member of a partnership as the decision appealed against did not finally determine the rights of the parties.

Background

The appeal involved a husband-and-wife café business partnership. They partners sought to appeal a default judgement order made by the Industrial Magistrates Court. The respondent was an industrial inspector that had alleged both members of the partnership had failed to produce records for examination, and that one member had obstructed an industrial inspector in the performance of their statutory duties. The Industrial Magistrates Court order was made against both partnership members individually, and the appeal was purportedly brought by both members of the partnership as the appellants

Contentions

The appellants sought an order quashing the default judgement order and the remittal of proceedings back to the Industrial Magistrates Court. The partner submitting the appeal contended their husband had represented both partners in the proceedings and referred to various complaints concerning the industrial inspectors, their affidavits, their service of documents and the time given to respond.

The respondent contended that only one partnership member was an appellant and that her husband had no appeal before the Full Bench. The respondent contended that a default judgement decision was interlocutory and not a final decision meaning the appeal was incompetent and should be dismissed.

Findings

The Full Bench noted that one partner had not been represented by the other as that partner was a respondent in her own right, she did not appear and filed the notice of appeal in her own name. The Full Bench noted there was no reference to her husband as an appellant in her appeal notice or grounds. The Full Bench found that for a person to have standing they must be ‘a party’ to the proceedings under s 84(3) of the Industrial Relations Act 1979 (WA) (‘IR Act’). The Full Bench found that only one partner was an appellant and that no appeal was filed by her husband.

The Full Bench found the relevant ‘decision’ that was the subject of the appeal was the order of the learned Industrial Magistrate that granted the respondent’s application at first instance for default judgment. The Full Bench noted issues with the amended and purported grounds of appeal referencing ‘appellants’ and referring to the incorrect decision. The Full Bench found that under s 27(1) of the IR Act it was not open to the Full Bench to amend an appeal that had the effect of substituting the decision under appeal for another decision. The Full Bench found it could only consider the ground which contended that the Industrial Magistrate erred in not granting an adjournment on the hearing of the default judgment application, and the assertion of a denial of procedural fairness.

The Full Bench found that the decision of the learned Industrial Magistrate could not be the subject of an appeal under s 84 of the IR Act, as it did not finally determine the rights of the parties to the proceedings. The Full Bench noted that the Industrial Magistrates Court had a discretionary power to set aside a default judgement but that no application was made by either partner to set aside the order.

The Full Bench found that the appeal was incompetent and dismissed the appeal. 

The decision can be read here.