100317768

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES JOSE ROGELIA A ACOSTA

CLAIMANT

 -v-

 GERRY BRODERICK,    BRYAN STOKES

RESPONDENTS

CORAM MAGISTRATE G CALDER IM 

DATE OF ORDER THURSDAY, 24 JULY 2003

CLAIM NO/S M 200 OF 2002

CITATION NO. 2003 WAIRC 08779

_______________________________________________________________________________ 

Representation

There were no appearances.

Mr S Kemp (of Counsel) made written submissions on behalf of the Claimant.

No submissions were made by or on behalf of the Respondents.

_______________________________________________________________________________

THE APPLICATION

1         On 28 March 2003, after hearing evidence and receiving submissions on behalf of the Claimant and the two Respondents, I held that the proceeding which the Claimant purported to initiate by documents lodged on 18 June 2002 was an appeal made pursuant to regulation 19 of the Industrial Relations (Industrial Agents) Regulations 1997 (the “IA Regs”) against a determination of the Registrar made pursuant to regulation 15(3) of the IA Regs.  In anticipation of the possibility of such a ruling, Mr Kemp, on behalf of the Claimant, had previously lodged an application for extension of the period within which an appeal by the Claimant could be commenced pursuant to regulation 19 of the IA Regs.  The hearing of that application was adjourned pending my decision delivered on 28 March 2003.  In delivering that decision I was required to give consideration to the effect of certain decisions and actions of the Registrar.  Following the publication of my reasons on 28 March 2003 I directed that all parties file written submissions in connection with the Claimant’s application for an extension of the time within which an appeal could be lodged by him pursuant to regulation 19.  Written submissions were lodged on behalf of the Claimant on 11 April 2003.  No submissions were received from the First Respondent or the Second Respondent.  I did not give the parties an opportunity to make oral submissions.  No request for such an opportunity was made by any party.

SUBMISSIONS OF THE CLAIMANT

2         Mr Kemp, in his written submissions, addressed several aspects in connection with the application to extend.  He directed submissions to the primary issue of the power to extend time.  He then made submissions concerning matters to be considered in the determination of the application.  He then separately considered reasons for delay, injustice if the period of time was not extended, prospects of success should the appeal period be extended and the appeal heard and, finally, prejudice to the Respondents.

3         Concerning the primary issue of the power to extend the period within which an appeal may be commenced, it is submitted that as the jurisdiction conferred on the Industrial Magistrate’s Court under the IA Regs is not expressly listed in section 81A of the Industrial Relations Act 1979 (WA) (“the Act”) it does not constitute any part of the General or Prosecution jurisdiction of the Court under section 81CA of the Act.  Reliance is therefore placed upon the provisions of regulation 18(2) of the IA Regs and regulation 7 of the Industrial Magistrates’ Courts (General Jurisdiction) Regulations 2000 (the “GJ Regs”).

4         Regulation 18(2) of the IA Regs says:

“In any hearing under regulation 17 or 19 the industrial magistrate is to apply, so far as is practicable, the same principles of practice and procedure as would be applied in an application before an industrial magistrate’s court exercising its general jurisdiction.”

5         Regulations 19(1) and (2) say:

“(1) A person aggrieved by — 

 (a) a determination of the Registrar under regulation 15 (3) that there are, or are not, reasonable grounds for a complaint under regulation 12 (2); or

 (b) the Registrar’s determination to cancel the person’s registration,

  may appeal to an industrial magistrate.

 (2) An appeal is to be commenced by notice in the approved form lodged within 21 days after receiving notice of the determination.”

6         There are no other provisions in the IA Regs which deal with the commencement of appeals to an Industrial Magistrate from a determination of the Registrar made under the IA Regs.  In particular, there is no other provision within the regulations concerning the period within which such an appeal must be commenced or providing expressly for the extension of the period within which such an appeal must be commenced.

7         Regulation 7 of the GJ Regs says:

“(1) A court hearing an action may, of its own motion or on an interlocutory application by a party, extend or abridge the time specified in these regulations for the conduct of a proceeding on such terms as it thinks fit.

(2) For the purposes of subregulation (1), a court may extend the time for the conduct of a proceeding even if the time has expired.”

8         Regulation 8 of the same regulations says:

“A proceeding is not invalid by reason only of a failure to comply with the practice and procedure provided for in, or under, these regulations and a court may make orders on such terms it thinks just to remedy any defect caused by the failure to comply.”

9         Counsel for the Claimant submitted that the terms of IA Reg 18(2) are peremptory and that they require the Industrial Magistrate to apply the General jurisdiction practice and procedure unless it is not practicable.  In relation to GJ Reg 7, Counsel submits that the word “proceeding”, as it is used in subregulations (1) and (2) of that regulation, has the meaning given to it by regulation 3, the interpretation regulation, namely, “ … a step taken in an action”.  He submits that the effect of regulation 7 of the GJ Regs is that an Industrial Magistrate’s Court, acting pursuant to the IA Regs, may extend any time period prescribed by the GJ Regs for any step taken in an action.  It is said that an appeal under regulation 19 of the IA Regs is a step prescribed by those regulations and that such a time period, being established by the IA Regs and not by the Act is a time period that is, therefore, similar to a time period prescribed under the GJ Regs and which may, in a proceeding under the IA Regs, be extended in accordance with regulation 7 of the GJ Regs.

10     It is conceded by the Claimant that he lodged his appeal on 18 June 2002 which is 288 days after the date of the Registrar’s determination of 3 September 2001.  The application to extend the time within which to appeal was lodged on 5 November 2002.

CONCLUSIONS

11     In my opinion, the provisions of IA Reg 18(2) do not have the effect contended by the Claimant.  I consider that, in the context of the present case, the key word governing the interpretation of that subregulation is “hearing”.  The word “hearing” is relevantly defined in the Shorter Oxford English Dictionary as meaning:

“(verbal) The listening to evidence and pleadings in a court of law; the trial of a cause; …”

12     “Hear” is defined in the Shorter Oxford English Dictionary to mean (inter alia):

“(trans.) To listen to judicially in a court of law.”

13     In the Macquarie Dictionary “hearing” is defined, as a noun, as (inter alia):

“Law - the trial of an action.”

14     “Hear/hearing” is defined in the Macquarie Dictionary, as a verb transitive, (inter alia) as:

“to give a formal, official or judicial hearing to, as … a judge does.”

15     In its normal, everyday use, “hearing”, used as a noun, means, and is understood to mean something which occurs or is occurring before a person or other body, for example, a Court or a tribunal.  In my opinion, it conveys the notion that whatever is required to cause the Court or tribunal or other body to commence and continue the hearing (such as the lodgement of an application or a writ or an appeal) has occurred as a procedure which is necessarily connected to but which is, nevertheless, not a part of the hearing itself.  That, in my view, is the plain meaning of “hearing”.  The word “in” is a word of limitation, a word of inclusion and, therefore, of exclusion.  When used as it is in regulation 18(2), it defines and qualifies the noun “hearing”.  In my opinion, the words “In any hearing”, in the context of the regulations and in the context of the Act from which the IA Regs and the GJ Regs derive, namely, the Industrial Relations Act 1979 (WA), mean and have the effect that IA Reg 18(2) only has application to the practice and procedure during the course of a hearing which has been properly commenced in accordance with the relevant legislation.  In this case, the only legislation which deals with the commencement of an appeal against a determination of the Registrar made under IA Reg 15(3) is IA Reg 19(2).

16     I consider that it is not the intention of IA Reg 18(2) that the procedural provisions of the GJ Regs are to be applied to the commencement of appeals pursuant to IA Reg 19.  If that were to be the case it could have been stated in the IA Regs in very simple and direct terms.  That was not done.  It could also have easily been said in the IA Regs that, for example, the provisions of GJ Regs 7 and 8 have application to the commencement of any process under the IA Regs.

17     I consider that it can correctly be said that, for purposes of IA Reg 18(2),  there is a “principle” which is evident from the provisions of GJ Reg 7, particularly when read with GJ Reg 8, which principle is to the effect that, in an appropriate case, and in order to avoid injustice, a party who fails to comply with a time requirement should be allowed to take the step which had otherwise to be taken within the specified time.  There is, however, in my opinion, an important limitation within the provisions of GJ Reg 7(1) in respect of its application to proceedings under the GJ Regs and, therefore, to its application to proceedings under the IA Regs.  That limitation, in my opinion, arises, as it did in IA Reg 18(2), out of the use of the word “hearing” in GJ Reg 7(1).  “Hearing” is not defined in the GJ Regs.  It is used as a verb in regulation 7(1).  Its use in that sense and in that manner qualifies and limits the occasion upon which and the circumstances in which GJ Reg 7(1) has application. 

18     GJ Reg 7 appears in Part 1 of the regulations headed “Preliminary”.  Of the ten regulations contained in Part 1, other than three introductory regulations, which include the citation, the commencement of the regulations and interpretation, only procedural matters are dealt with.  Regulation 4 provides for the provisions of the Local Courts Act 1904 (WA) to have application as set out in that regulation.  Regulation 5 empowers the Chief Stipendiary Magistrate to give directions as to the practice and procedure to be followed in proceedings generally where the regulations or the Local Courts Act 1904 does not provide for such matters.  Regulation 6 empowers an Industrial Magistrate’s Court hearing a matter to give directions on practice and procedure in connection with an action if the regulations or the Local Courts Act 1904 or the Chief Stipendiary Magistrate’s directions do not make provision for the particular practice or procedure.  I have previously mentioned regulations 7 and 8.  Regulation 9 provides for the venue where actions must be commenced and allows for transfer of actions to another Court.  Regulation 10 provides for a flow chart of proceedings which is for information only and not part of the regulations.

19     Given that the provisions of regulations 4 and 5 deal broadly with all matters of practice and procedure under the GJ Regs it is, in my opinion, a proper interpretation of the provisions of GJ Regs 6 and 7 that it is the intention of those regulations that they have limited application and that the limitation is that they only apply where a Court has before it and is hearing an action properly commenced in accordance with the legislation.  That is to say regulations 6 and 7 do not apply unless and until a “hearing” has commenced before an Industrial Magistrate’s Court.  I consider that in that context a “hearing” would include interlocutory applications made to the Court in connection with the primary action which is already before the Court and which has been properly brought before the Court in accordance with the relevant legislative provisions in respect of the initiating of such proceedings.  In other words, only matters which are an integral part of or which are ancillary to the hearing and which are distinct from and are not matters of the commencement of or which are ancillary to the commencement of the proceeding may be within the ambit of the general jurisdiction principles of practice and procedure.

20     There is in the GJ Regs no power given to an Industrial Magistrate’s Court to extend time generally.  The only provision in the GJ Regs concerning extension of time is that which appears in regulation 7 which, as I have stated, is limited in its application to the practice and procedure in a hearing which has been properly commenced.

21     It is, in my opinion, also relevant in the interpretation of the provisions of IA Reg 18(2) that, whereas IA Reg 19(2) contains no express power to extend the time within which an appeal may be commenced, by contrast, IA Reg 12(3) which deals with the lodgement of complaints to the Registrar, specifies a time within which complaints must be lodged and then empowers the Registrar, in prescribed circumstances, to extend the period within which the complaint may be lodged.  I consider that the express reference to an extension of time under regulation 12(3) militates against any suggestion that the draftsman may have overlooked such a provision in connection with the commencement of an appeal under regulation 19(2) and is indicative of an intention that the time prescribed by regulation 19(2) is not to be extended.  Although it may in some cases lead to an injustice to a person aggrieved by a determination of the Registrar made under IA Reg 15(3), if, for some reasonable cause, the person fails to comply with the time prescribed by IA Reg 19(2), it cannot necessarily be said that that was an injustice which Parliament overlooked or which it did not intend to overcome.  It cannot be forgotten that there is the potential respondent industrial agent for whom a finality of the proceedings is likely to be extremely important.  Proceedings commenced pursuant to IA Reg 12 and which have been the subject of a determination under IA Reg 15(3), have the potential to lead to the agent being deprived of a livelihood as an industrial agent should the proceedings ultimately result in cancellation of the agent’s registration.  In many, if not all cases, it would be potentially unfair for an agent to be faced with the uncertainty of his or her future which may arise if it is the case that the appeal period may be extended beyond the prescribed 21 days.  Although it may be said that such a matter is something which is more appropriately to be considered in the context of the exercise of a discretionary power to extend time, it is also something which Parliament could have properly taken into account in deciding what condition should attach to a right of appeal.  There is nothing unclear or ambiguous about the way that the time period is prescribed in IA Reg 19(2).

22     For all of the above reasons it is my opinion that it was not the intention of Parliament that IA Reg 18(2), together with the provisions of GJ Reg 7, have the effect that the time period of 21 days specified in IA Reg 19(2) within which an appeal may be commenced can be extended.  The application for extension of time is dismissed.

23     The appeal is therefore struck out.

G Calder

Industrial Magistrate