WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES PHILLIP RALPH MCGUINESS

CLAIMANT

-v-

Toni Walkington

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Wednesday, 10 December 2008

DELIVERED Wednesday, 10 December 2008

FILE NO. M 89 OF 2008

CITATION NO. 2009 WAIRC 00002

CatchWords Alleged failure to comply with the provisions of section 74 of the Industrial Relations Act 1979; Third party discovery; Subpoena duces tecum

Result Application dismissed

Legislation  Industrial Relations Act 1979.

Industrial Magistrates Courts (General Jurisdiction) Regulations 2005.

Representation Mr G McCorry of Labourline – Industrial & Workplace Relations Consulting on behalf of the Claimant.

Mr P Harris, counsel instructed by Ilberys Lawyers, appeared for the Respondent.

Reasons for Decision

(Given extemporaneously at the conclusion of submissions, extracted from the transcript of proceedings and edited by His Honour)

1      The applicant, who is the claimant in this matter, seeks an order that:

A subpoena duces tecum be issued to the Community and Public Sector Union State Public Services Federation WA Branch/Civil Service Association of WA Inc (CPSU/CSA) . . .

2      Regulation 3 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (the regulations) prescribes that unless a Court in a particular case orders otherwise the practice and procedure provided for in the regulations applies in every case.  The Court's duties in dealing with cases are outlined in regulation 5.  The Court’s powers are limited to those powers contained within the Industrial Relations Act 1979 (the Act) and the regulations.  The applicant suggests that regulation 7(1)(r) enables this Court to issue a subpoena duces tecum notwithstanding that there is no specific power, practice or procedure  to enable the same.  Regulation 7(1)(r) provides:

(1)   A Court may do all or any of the following for the purposes of controlling  and managing cases and trials-

(r)        take any other action or make any other order for the purpose of complying with regulation 5.

3      Regulation 5 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.

4      With respect I am of the view that regulation 7(1)(r) is limited to taking any other action which would otherwise be within power and necessary to give efficacy to the regulations or which would otherwise be considered as being ancillary to the achievement of the powers set out within the particular regulation.  It does not enable this Court to do whatever it likes.  This Court is a creature of statute.  It does not have inherent jurisdiction.  It must deal with matters in the way provided by the Act and the regulations.  There is no specific power contained in the regulations to order third party discovery.  I cannot create that power.  This Court does not have the ability to issue a subpoena ducus tecum.

5      In any event it seems to me that the applicant can nevertheless achieve his end by utilising regulations 37 and 39.  In that regard, if necessary, the combination of regulations 7(1)(r) and 61 can be used to vary the available procedures to extend time to inspect documents produced to the Court in response to a Witness Summons.

6      I am without power to order what is sought in this application.  The application dated 1 December 2008 for the issue of the subpoena ducus tecum is accordingly dismissed.

G Cicchini

Industrial Magistrate