100314917

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH

APPLICANT

 -v-

 AUSTAL SHIPS PTY LTD

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE MONDAY, 18 NOVEMBER 2002

FILE NO/S M 375 OF 2001

CITATION NO. 2003 WAIRC 07367

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Result Claim struck out for want of jurisdiction

Representation

Claimant Mr L Edmonds of counsel

Respondent Mr K Martin QC and with him Mr S Heathcote of counsel

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Reasons for Decision

(Given orally during and at the conclusion of the hearing, extracted from the transcript of proceedings and edited by His Worship)

1         The Claimant seeks, on the first day of the hearing of this matter, to amend the claim by substituting the worker, Mr Richard James Quinlivan, as the Claimant.  The power for substitution is available to me by virtue of Order 16 Rule 1 of the Local Court Rules 1961.

Section 81CA(2) of the Industrial Relations Act 1979 provides that:

“Except as otherwise prescribed by or under this Act or another law — 

 (a) the powers of an industrial magistrate’s court; and

 (b) the practice and procedure to be observed by an industrial magistrate’s court,

when exercising general jurisdiction are those provided for by the Local Courts Act 1904 as if the proceedings were an action within the meaning of that Act.”

2         I have gone to the regulations in relation to this jurisdiction, being the Industrial Magistrate's Courts (General Jurisdiction) Regulations 2000.  Regulation 6 thereof provides:

 “(1) A court hearing an action may, of its own motion or on an interlocutory application by a party, give a direction on the practice and procedure in relation to a proceeding in the action if —

 (a) these regulations do not provide for the practice or procedure in the proceeding;

 (b) the Local Courts Act 1904 does not provide for the practice or procedure in the proceeding or provides for a practice or procedure that is inconsistent with these regulations; and

 (c) no direction under regulation 5 in relation to a proceeding of that kind is in force.”

3         Regulation 5 is a provision that enables the Chief Stipendiary Magistrate to make directions in relation to procedure.  It provides:

“(1)  The chief stipendiary magistrate may give directions as to the practice and procedure to be followed in proceedings generally, if —

 (a) these regulations do not provide for the practice or procedure in the proceedings; and

 (b) the Local Courts Act 1904 does not provide for the practice or procedure in the proceedings, or provides for a practice or procedure that is inconsistent with these regulations.”

4         As to the application for substitution of the Claimant in this matter, there is no particular regulation that I can find within the Industrial Magistrate's Courts (General Jurisdiction) Regulations 2000 that applies.  There has not been any direction given by the Chief Stipendiary Magistrate in that regard.  Accordingly, it seems to me that the provisions of the Local Courts Act 1904 and rules apply.  In that regard I note Order 16 Rule 1 of the Local Court Rules 1961.  It provides:

"Where an action or matter has been commenced in the name of the wrong person as plaintiff or otherwise, or where it is doubtful whether it has been commenced in the name of the right person, the Magistrate, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, may order any other person to be substituted or added as plaintiff or otherwise upon such terms, as to notice and otherwise, as may be just ."

5         Therefore there is power for substitution to occur if I am satisfied that the proceedings have been commenced in the wrong name as a result of a bona fide mistake.

6         It is incumbent upon the Claimant to provide evidentiary material addressing the issue of mistake.  That has not been done.  The position is that the Court has been asked to proceed and grant the application on what can only be said is an evidentiary vacuum.  There is simply no evidence before the Court going to the issue of mistake.

7         It must be said that the Claimant has had the opportunity to address this issue of mistake and, it seems, has had the opportunity to do so since early November, but has not done so.  The result is that the necessary and pivotal precursor to this Court exercising its jurisdiction in favour of the Claimant has not been met and it has left this Court with no evidence upon which it could possibly grant the application, leading inevitably to the rejection of the application for substitution made by the Claimant.  Further, and in any event, having been taken through the pleadings by Mr Martin, I agree with him that the pleadings have been prepared in what seems to be a considered approach, and that also militates against a finding of mistake.

8         The bottom line here is that the Court cannot operate in an evidentiary vacuum.  There is simply no evidence, which would enable me to exercise my discretion even though I have the power to do so pursuant to Order 16 Rule 1 of the Local Court Rules 1961 and, therefore, for those reasons, the application is refused.

(His Worship then heard the parties in relation to whether the claim should proceed. The Reasons for Decision then continued)

9         The submissions made by Mr Martin in this matter are obvious.  In essence he suggests that the claim brought by the Claimant union is predicated on its ability to pursue a claim governed by the workplace agreement.  It is self-evident that the union does not possess the ability to pursue a claim pursuant to the Workplace Agreements Act 1993.  It was not privy to the agreement between Mr Quinlivan, the worker, and the respondent.  It is axiomatic, therefore, that this claim is erroneously founded.  I need not go over, in any detail, what Mr Martin has put to me because, as I have said, those submissions are self-evident as are the outline of written submissions that he has made on the jurisdictional issues.  Indeed, they are so self-evident that even Mr Edmonds does not resist the argument.  He indicated to me that the whole basis for making the initial application to amend the name of the Claimant was founded on the obvious difficulty that presented as a consequence of the issues raised by the Respondent.  It follows that this Court does not have the ability to deal with this matter before it.  There is a fundamental flaw in the claim, which strikes at the jurisdiction of this Court.   I therefore find that I do not have jurisdiction to deal with the claim as it is before me.

10     For the reasons stated, I order that the claim be struck out for want of jurisdiction.