100319413

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES RICHARD JAMES QUINLIVAN

CLAIMANT

 -v-

 AUSTAL SHIPS PTY LTD

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE THURSDAY, 9 OCTOBER 2003

CLAIM NO M 314 OF 2002

CITATION NO. 2003 WAIRC 09633

_______________________________________________________________________________

Representation

Claimant Mr L Edmonds (of Counsel)

Respondent Mr KJ Martin QC and with him Mr S Heathcote (of Counsel) instructed by Messrs Clayton Utz, Lawyers

_______________________________________________________________________________

Reasons for Decision

Applications

1         On 1 August 2003 the Respondent filed a notice directed to the Claimant seeking further and better particulars of claim.  The further and better particulars as sought were not provided and accordingly on 25 August 2003 the Respondent made an interlocutory application seeking the following orders:

1. That the Claimant provide further and better particulars of the Claim … within 7 days; and
2. If the Claimant fails to provide further and better particulars in accordance with Order 1 … that the Claim be dismissed.

2         On 10 September 2003 that application came on for hearing but was adjourned to 18 September 2003.  On 15 September 2003 the Claimant filed his interlocutory application seeking to substitute particulars of claim.  That application also came on for hearing on 18 September 2003 at which time both the Claimant and Respondent’s application were further adjourned to 23 September 2003.  The adjournment was necessary on account of the fact that the Claimant’s application went beyond mere amendment.  In fact the Claimant sought to add another party to the action.  An adjournment was granted so that the Claimant could, in proper form, make his application to add a party to the action.  Accordingly on 22 September 2003 the Claimant made an interlocutory application seeking the following orders:

That the Court grant leave to add Austal Ships Pty Ltd (ACN 079 160 679) as the Second Respondent in this matter.

3         By further interlocutory application also dated 22 September 2003 the Claimant sought that the particulars of claim in the matter be substituted to reflect a claim as against both the First Respondent and the proposed Second Respondent.  On the same day the Respondent filed its interlocutory cross-application seeking the following:

(1)(a)  That the proposed claim (as amended) against Austal Limited (ACN 009 250 266) if it is an existing Respondent, do be summarily dismissed on the basis that it discloses no arguable cause of action (by reason of its reliance upon section 24(2) of the Minimum Conditions of Employment Act 1993(WA) upon a termination event, other than as employer, by Austal Limited); or

(b)  alternatively that to the extent that Austal Ltd (ACN 009 250 266) is not an existing party to claim no. 314 of 2002, that any application for leave to add it as a party, do be refused on the basis that the addition of such a party would be entirely futile (for the reasons given in (1)(a) above);

(2)(a)  that any application to add Austal Ships Pty Ltd (ACN 079 160 679) as an additional party to claim no. 314 of 2002 (if it is not currently a party), do be refused on the basis such application would be entirely futile (there being no arguable cause of action against Austal Ships Pty Ltd (ACN 009 160 679), since a proposed claim against it under section 24(2) of the Minimum Conditions of Employment Act 1993(WA) is based upon a termination of employment on 8 May 2001, during the existence of a Workplace Agreement, and the jurisdictional prerequisites of sections 21, 50(1) and 54 of the Workplace Agreements Act 1993 (WA) have not been satisfied); or

(b)   alternatively, to the extent that Austal Ships Pty Ltd (ACN 079 160 679) is already an existing party to claim no.314 of 2002, that the claim do be summarily dismissed on the basis that (for the reasons mentioned in paragraph (2)(a) above) there is no arguable cause of action against Austal Ships Pty Ltd (ACN 079 160 679).

4         Notwithstanding that there had not been compliance with regulation 25(1)(b) of the Industrial Magistrates’ Courts (General Jurisdiction) Regulations 2000 with respect to the applications filed on 22 September 2003, the parties were desirous of my dealing with the matter and indeed sought that I deal with and determine all matters in controversy between them on their respective interlocutory applications.  It is noted that the same solicitors and counsel representing the Respondent (proposed First Respondent) also represented the proposed Second Respondent.

History of the Action

5         This matter, which commenced on 25 November 2002 along with other associated matters, has a somewhat tortuous history.  Indeed on 13 February of this year I made certain orders which had the effect of striking out the Claimant’s claims made under the Workplace Agreements Act 1993 in relation to a Workplace Agreement made between the Claimant on the one hand and Austal Ships Pty Ltd (ACN 079 160 679) on the other.  On the same day I also dismissed part of the claim in so far as it related to the enforcement of the Metal Trades (General) Award 1965 (the Award).  My reasons for doing so are found at 83 WAIG 552.

6         In the course of previous argument, and in my previous consideration of the matter including my reasons for decision delivered on 13 February 2003 I proceeded on the basis that the Claimant had misdescribed the Respondent’s ACN as had been pointed out by the Respondent in its response and with which the Claimant took no issue.  However it seems, as explained by Mr Edmonds for the Claimant during the course of argument on these applications that it has always been the Claimant’s intention to proceed against Austal Ltd formerly known as Austal Ships Pty Ltd (ACN 009 250 266).

7         The state of confusion as to the correct Respondent, it seems, loomed not only in my mind but also in the mind of Counsel for the Respondent.  I say that because it was apparent during the course of submissions that the Respondent’s representatives were initially of the view that the Claimant was seeking to add as a First Respondent, Austal Ltd formerly known as Austal Ships Pty Ltd (ACN 009 250 266).  I confess that I was of the same view.  However it became apparent that by his application the Claimant was seeking to add Austal Ships Pty Ltd (ACN 079 160 679) as a Second Respondent.  That is so notwithstanding the fact that in the interlocutory application dated 15 September 2003 and in the supporting affidavit of Mr Edmonds thereto sworn 15 September 2003 Respondent is described as Austal Ships Pty Ltd (ACN 009 160 679).  It seems therefore that even Counsel for the Claimant has also on occasions proceeded on an erroneous footing.

8         Once clarified, both parties have for the purpose of argument before, me proceeded upon the basis that the correct current Respondent party and the proposed First Respondent to this proceeding is Austal Ltd (ACN 009 250 266) formerly known as Austal Ships Pty Ltd and that the proposed Second Respondent is Austal Ships Pty Ltd (ACN 079 160 679)

Background

9         It is common ground that on or about 12 August 1996 the Claimant commenced with Austal Ltd (ACN 009 250 266).  The Claimant alleges that he was an employee of the Respondent.  The Respondent, on the other hand, contends that the Claimant was an independent contractor providing services to the Respondent under the business name “RJQ Welding and Fabrications”.  From 1 July 1998 the contract of service or for services, as the case may be, was transferred to Austal Ships Pty Ltd (ACN 079 160 679) being a wholly owned subsidiary of Austal Ltd.  The Claimant continued to work for Austal Ships Pty Ltd (ACN 079 160 679) until 8 May 2001 at which time his employment was terminated by reason of redundancy.  It is not disputed that from 20 January 1999 until termination occurred the Claimant was the subject of a contract of service regulated by successive individual Workplace Agreements made pursuant to the Workplace Agreements Act 1993.  I appreciate that the issue as to whether the Claimant was an independent contractor leading up to 20 January 1999 remains very much live, however, for the purposes of resolving the interlocutory applications before me I proceed on the basis, and without finally determining the issue, that the Claimant was at all material times an employee.

Issues

10     As a consequence of the Claimant’s application for leave to add a party and for leave to amend, the Respondent’s application for further and better particulars becomes redundant.  I accordingly will deal only with the Claimant’s interlocutory applications dated 15 and 22 September 2003 and the Respondent’s cross application dated 22 September 2003.

11     The Claimant proposes to amend his claim and to add a party so that the proposed particulars of claim will be as follows:

IN THE INDUSTRIAL MAGISTRATE'S COURT OF WESTERN AUSTRALIA

HELD AT PERTH

No.   314 of 2002

BETWEEN:

Richard James Quinlivan

Claimant

AND

AUSTAL LTD FORMERLY KNOWN AS

AUSTAL SHIPS PTY LTD A.C.N. 009 250 266

First Respondent

AND

AUSTAL SHIPS PTY LTD A.C.N. 009 160 679

Second Respondent

The particulars of the claim are set out hereunder.

1. The Claimant was an employee of Austal Ltd (the First Respondent) inclusive of the period 12th August 1996 to 30 June 1998 and an employee of Austal Ships Pty Ltd (the Second Respondent) from 1 July 1998 to 8th May 2001.

2. On 20th January 1999 the Claimant agreed to sign and register an individual Workplace Agreement (hereinafter “the workplace agreement”) with the Second Respondent.

3. On 8th May 2001 the Claimant’s employment was terminated by the Second Respondent.

4. Contrary to section 24(2) of the Minimum Conditions of Employment Act 1993, the First and Second Respondents failed to pay annual leave to the claimant for the periods 12 August 1996 to 30 June 1998 and 1 July 1998 to 19 January 1999 respectively.

AND THE CLAIMANT CLAIMS

5. An order for payment in lieu of annual leave calculated as follows:

a) 178 weeks employment between 12th August 1996 and 19th January 1999, multiplied by 2.923 hours pay per week of employment = 520.29 hours.

b) 520.29 hours multiplied by the Claimant's hourly wage rate as of 19th January 1999 being $21.99 per hour = $11,441.17.

TOTAL        $11,441.17

c) INTEREST AND COSTS

12     The particular amendments have not been delineated in the usual manner and accordingly it is necessary to recite the previous pleadings so that an appreciation may be gained of the differences between the particulars filed on 6 March 2003 and those proposed.  I set out the particulars filed on 6 March 2003:

IN THE INDUSTRIAL MAGISTRATE'S COURT OF WESTERN AUSTRALIA

HELD AT PERTH

No.   314 of 2002

BETWEEN:

Richard James Quinlivan

Claimant

AND

AUSTAL SHIPS PTY LTD A.C.N. 009 250 266

Respondent

The particulars of the claim are set out hereunder.

1        The Claimant alleges that he was an employee of Austal Ships Pty Ltd (the Respondent) inclusive of the period 12th August 1996 to 8th May 2001, constituting 4 years' continuous employment with the Respondent.

2        On 20th January 1999 the Claimant agreed to sign and register an individual Workplace Agreement (hereinafter “the workplace agreement”).

3        The Claimant alleges that, at all material times he was employed by the Respondent, and that his employment was regulated by the Minimum Conditions of Employment Act 1993 throughout the period 12th August 1996 to 19th January 1999.

4        On 8th May 2001 the Claimant was made redundant by the Respondent.

5        The Claimant applies for an order for recovery of unpaid annual leave pursuant to sections 23 and 24 of the Minimum Conditions of Employment Act 1993.

PARTICULARS OF BREACH

6.   The Respondent failed to pay the Claimant annual leave entitlements pursuant to sections 23 and 24 of the Minimum Conditions of Employment Act 1993 throughout the period 12th August 1996 to 19th January 1999 inclusive.

AND THE CLAIMANT CLAIMS

7.   An order for payment in lieu of annual leave calculated as follows:

a) 178 weeks employment between 12th August 1996 and 19th January 1999, multiplied by 2.923 hours pay per week of employment =

 520.29 hours.

b) 520.29 hours multiplied by the Claimant's hourly wage rate as of

 19th January 1999 being $21.99 per hour = $11,441.17.

TOTAL        $11,441.17

c) INTEREST AND COSTS

13     It will be noted that the proposed amendment has the effect of distinguishing the Claimant’s respective claims as against the proposed First and Second Respondents.  It will also be obvious that the Claimant no longer alleges one continuous period of employment with Austal Ships Pty Ltd (ACN 009 250 266) being the current Respondent.  Further the Claimant, in the proposed amended particulars, restricts his claim to one made pursuant to section 24 of the Minimum Conditions of Employment Act 1993.  Reference to the claim being made pursuant to section 23 of the same Act is removed.  The other amendments are consequential and flow from those major amendments to which I have referred.

Determination

14     The real issue in controversy to be determined with respect to these applications is whether, on the face of the Claimant’s claim in its amended form, there is a case as against the current and/or the proposed Respondent that can arguably succeed.  In other words, whether the Claimant has as against each Respondent a cause of action, which has some possibility of success.

15     The onus rests with the current Respondent in its cross application to show that the claim against it is so totally devoid of merit that the Claimant ought not be given leave to amend his claim.  It is argued that the Court should either dismiss the claim or alternatively stay the proceedings against the existing Respondent in order to stop an abuse of process.  It is argued that it is permissible for this Court to permanently stay the action using its inherent powers to regulate its own proceedings.  In that way the Respondent’s exposure to costs would be limited and it would prevent a waste of the Court’s resources having regard to the important principles of case flow management.  The proposed Second Respondent argues that no action can lie against it and that it accordingly should not be added as a Second Respondent to the action.  On the other hand all that the Claimant has to do in order to defeat the Respondents’ arguments and succeed in his own applications is to show there is an arguable case as against each of the current and proposed Respondents.  If that can be achieved he should be given leave to amend and to add the proposed Second Respondent.

16     The Claimant’s claim against the current Respondent and the proposed Second Respondent is founded upon section 24 of the Minimum Conditions of Employment Act 1993, which states:

Payment for Annual Leave

24 (1) …

 (2)  If — 

(a) an employee lawfully leaves his or her employment; or

(b) an employee’s employment is terminated by the employer through no fault of the employee,

 before the employee has taken annual leave to which he or she is entitled, the employee is to be paid for all of that annual leave.

 (3)  …

 (4)  …

17     It is not in dispute that the Claimant’s employment was terminated on 8 May 2001 whilst the proposed Second Respondent employed him and whilst his employment was regulated by the terms of an individual Workplace Agreement.  Accordingly any claim that he may have as against the proposed Second Respondent for entitlements predating the Workplace Agreement appears to arise by virtue of section 7 of the Workplace Agreements Act 1993, which provides:

Effect of workplace agreement on accrued entitlements

7.    Any entitlement accrued to an employee under the relevant award before the workplace agreement entered into by the employee comes into effect shall be preserved and paid to the employee by the employer at either — 

 (a) the award rate; or

 (b) the rate the employee was paid,

whichever was the higher at the time immediately prior to the workplace agreement coming into effect.

18     The Claimant’s entitlement to paid annual leave is preserved pursuant to section 7 of the Workplace Agreements Act and can only be recovered pursuant to that Act.  If however it could be established that the Claimant left his employment or was terminated whilst his employment was not subject to an individual Workplace Agreement then his entitlement under section 24 of the Minimum Conditions of Employment Act 1993 would arise as a minimum condition of employment, implied pursuant to section 5 of the Minimum Conditions of Employment Act 1993.  That benefit implied into his contract of service is only payable by force of the Minimum Conditions of Employment Act 1993.  Indeed the same can only be enforced by virtue of section 7(b) or (c) of that Act once one of the alternate criterion in section 24(2)(a) or (b) of that Act is satisfied. 

19     Relevantly section 7 of the Minimum Conditions of Employment Act 1993 provides:

Enforcement of minimum conditions

7.   A minimum condition of employment may be enforced — 

 (a) where the condition is implied in a workplace agreement, under Division 1 of Part 5 of the Workplace Agreements Act 1993;

 (b) where the condition is implied in an award, under Part III of the Industrial Relations Act 1979; or

 (c) where the condition is implied in a contract of employment, under section 83 of the Industrial Relations Act 1979 as if it were a provision of an award, industrial agreement or order other than an order made under section 32 or 66 of that Act.

20     The Claimant contends that on 19 January 1999 he lawfully left the employment of the proposed Second Respondent.  The foundation for such contention lies in the fact that he entered into a Workplace Agreement on the following day.  The Claimant’s argument is entirely predicated on the employment relationship with the proposed Second Respondent coming to an end and a new employment relationship commencing.  However it is quite obvious that the contract of employment continued across the changes to the terms of the employment relationship.  It was not the case that by entering into the first of the Workplace Agreements that there was a termination of the contract of employment.  Clearly that did not occur either in fact or in law.  The existing contract of employment between the parties continued albeit subject to different terms.  Indeed section 7(4) of the Workplace Agreements Act 1993 provides for that very circumstance.  It states:

(4)     A workplace agreement does not displace the contract of employment between an employer and an employee but while it is in force it has effect — 

(a) as if it formed part of that contract; and

(b) regardless of any provision of that contract.

21     The Claimant’s entitlement to the payment for annual leave not taken, which predated his entering into the Workplace Agreement was preserved and could only be paid out upon termination.  Given that termination occurred during the currency of the second Workplace Agreement his rights thereunder can only be enforced under Division 1 of Part 5 of the Workplace Agreements Act 1993 pursuant to section 7(a) of the Minimum Conditions of Employment Act 1993.  It follows therefore, given that the claim as against the proposed Second Respondent is not ostensibly being conducted pursuant to Division 1 of Part 5 of the Workplace Agreements Act 1993, the claim cannot possibly succeed.

22     Turning to the claim as against the current Respondent Austal Ships Pty Ltd (ACN 009 250 266), can it be said that the same is arguable?  Leaving aside the issue as to whether the Claimant was an employee or independent contractor and assuming, for the purposes of this exercise, that he was at all material times an employee of the Respondent between 12 August 1996 and 30 June 1998, can it be said that he is entitled to recover annual leave entitlements, or more precisely pay in lieu of annual leave entitlements accumulated over that period?

23     It has not been suggested that the Claimant was at any stage terminated by the Respondent.  Accordingly the Claimant’s entitlement claimed against the current Respondent is said to arise by virtue of section 24(2)(a) of the Minimum Conditions of Employment Act 1993 rather than section 24(2)(b) of that Act.  The claim is accordingly predicated on the fact that the Claimant lawfully left his employment on 30 June 1998 being his last day of employment with the current Respondent.  It is suggested therefore that the employment relationship with the Respondent ceased on that day and that a new relationship with the proposed Second Respondent commenced the day after.  Clearly that did not occur either in fact or in law.  All that occurred was that there was a transmission of the business.  The contract of employment continued across the transmission and was not determined by it.  The mere fact that there has been a transmission of a business from one entity to another does not of itself mean that the employment contract comes to an end and that a new contract of employment ensues thereafter.  Indeed in such situations the contract of employment transcends the takeover of the business and the employee’s rights and entitlements are preserved.

24     Mr Edmonds asks that I infer from exhibit LAE 3 referred to in his affidavit sworn 22 September 2003, (handed to the Court on 23 September 2003) that the legal effect of the transfer as reflected therein was to bring the contract of employment with the current Respondent to an end.  That being the case the trigger required by section 24(2)(a) of the Minimum Conditions of Employment Act 1993 for the payment of accrued annual leave exists.  In my view the Claimant’s own conduct and pleadings in this matter contra-indicates any suggestion that the Claimant lawfully left his employment.  Indeed, in the current particulars of claim filed 6 March 2003, the Claimant alleges in paragraph 1 that he was an employee of the Respondent inclusive of the period 12 August 1996 to 8 May 2001, constituting four years’ continuous employment with the Respondent.  It seems to me that what the Claimant is now saying is that the legal effect of what occurred was that he left the employment of the Respondent on 30 July 1998 and that he commenced employment with the proposed Second Respondent on 1 July 1998 as is supported by annexure LAE 3.  In my view the annexure cannot be construed in that way.  All the annexure does is to reflect transmission.  In any event the argument seems to run contrary to and is inconsistent with argument inferentially made that the transmission of the business was a sham in any event.  In that regard I was referred to annexure 4 of Mr Edmonds’ affidavit sworn and filed 22 September 2003.  The annexure consists of a warning given to the Claimant on 1 October 1998.  Austal Ships Pty Ltd (ACN 009 250 266) gave that warning notwithstanding that it had by that stage transmitted its business to the proposed Second Respondent and was no longer the employer of the Claimant.  The fact that it was no longer the employer is to be found in the transmission document (annexure LAE 3) and the other evidentiary material before me.  Notwithstanding that, the current Respondent on the face of it (see annexure 4) appears to have given the warning in spite of the fact that it is obvious that the Claimant was at that time not working for it but rather for Austal Ships Pty Ltd (ACN 079 160 679).  If the transmission was no more than a sham as is suggested by Mr Edmonds then that of itself cannot support the argument that the Claimant lawfully left his employment.  Indeed if the process was a sham then all that occurred is that the Claimant remained working for the current Respondent.  The undisputed evidentiary material before me would not support a conclusion either in fact or in law that at any stage during the four-year period that the Claimant lawfully left his employment with the Respondent and /or the proposed Second Respondent.  I therefore cannot see how the Claimant could possibly satisfy the necessary trigger in section 24(2)(a) of the Minimum Conditions of Employment Act 1993 to enable him to bring his claim as against the current Respondent.  In such circumstances it cannot be said that the Claimant has an arguable case as against the current Respondent Austal Ships Pty Ltd (ACN 009 250 266).

Result

25     I find myself in general agreement with the submissions made by Mr Martin on behalf of the Respondents.  It appears that the Claimant’s ability to recover may rest solely with the provisions of the Workplace Agreements Act 1993.  I conclude therefore that the Claimant does not have an arguable case as against the current Respondent as pleaded or as against both the current Respondent and the proposed Second Respondent as pleaded in the Claimants proposed amended particulars of claim.  I would accordingly not allow the Claimant’s applications.  It is appropriate, for the reasons given, to allow the Respondent’s cross application.

26     The cross application should be allowed subject to my consideration of whether the appropriate order is to dismiss the claim or, alternatively, permanently stay the same.

27     Section 81CA(2) of the Industrial Relations Act 1979 governs, subject to the Industrial Magistrate’s Courts (General Jurisdiction) Regulations 2000, the powers, practice and procedure of this Court.  It provides:

(2)  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.

28     Regulation 5 of the Industrial Magistrate’s Courts (General Jurisdiction) Regulations 2000 provides:

Chief stipendiary magistrate’s directions

5  (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.

(2)   The chief stipendiary magistrate may amend or revoke directions given under subregulation (1).

(3)   The court is to make available to the public directions given under subregulation (1).

29     There is no provision in the Industrial Magistrate’s Courts (General Jurisdiction) Regulations 2000, the Local Courts Act 1904 or the rules created thereunder or in any direction given by the Chief Stipendiary Magistrate which would enable a Respondent to seek a summary judgment order in this Court.  That, of course, stands in contrast with Courts of superior jurisdiction in Western Australia having the ability to deal with such applications within their own jurisdiction.  Given that that is so, there is a concern that it may not be permissible to dismiss a claim, or any part of it, without it being dealt with on its merits.  It could be argued that the only way that this Court can intervene in stopping the unmeritorious claim from proceeding further is to permanently stay the same. 

30     The Local Courts’ ability to dismiss an action so as to avoid an abuse of process has been the subject of recent judicial pronouncement by Her Honour Jenkins DCJ in Leonard James Green and Joyce Ruth Green v Rachel Daly and Melissa Daly (an infant by her Next Friend Rachel Daly) [2002] WADC 109.  At page 7 Her Honour said,

“Having regard to the state of the authorities such as Thorpe v City of Subiaco (supra) and CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391 it seems that there is a general principle to the effect that any court may dismiss or stay proceedings which are oppressive, vexatious or an abuse of process.  This implied power is reasonably required for the effective exercise of a court’s jurisdiction to hear and determine matters before it.  It is clear from the case of Grassby (supra) that the express and mandatory terms of a statute may deprive a court of such power.  In my opinion the provisions of the Local Courts Act 1904 are not set out in such an express or mandatory form so as to deprive the Local Courts of the implied power to dismiss an action for want of prosecution so as to avoid an abuse of process of the Court.”

31     Having regard to section 81CA(2) of the Industrial Relations Act 1979 the view expressed by Her Honour concerning the powers of the Local Courts is apposite in this case and in the considerations of the applications before me.  It follows therefore that I do have power to dismiss the Claimant’s action on the grounds that there has not been demonstrated an arguable case.

32     I accordingly propose to make the following orders:

1. The Respondent’s interlocutory application filed on 25 August 2003

be dismissed.

2. That the Claimant’s interlocutory application filed on 15 September 2003 be dismissed.

3. That the Claimant’s interlocutory application seeking leave to add a Respondent filed on 22 September 2003 be dismissed.

4. That the Claimant’s interlocutory application seeking to substitute his particulars of claim filed on 22 September 2003 be dismissed.

5. The claim be otherwise dismissed.

G Cicchini

Industrial Magistrate