WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES DIANE ROBERTSON

APPLICANT

-v-

ROBERT PEMBERTON

              CLAIMANT

-and-

CIVIL SERVICE INSURANCE AGENCY PTY LTD

       FIRST RESPONDENT

-and-

TONI WALKINGTON

             SECOND RESPONDENT

-and-

BRENDON HEWSON

                THIRD RESPONDENT

-and-

DEREK SPRAY

            FOURTH RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD 28 January 2009

DELIVERED Friday, 30 January 2009

FILE NO. M 31 OF 2008

CITATION NO. 2009 WAIRC 00037

CatchWords Application for leave to inspect a court record and obtain a copy of the same pursuant to s81F(4) of the Industrial Relations Act 1979 (IRA); Whether s81F(4) applies to a matter heard and determined under the Workplace Relations Act 1996 utilising the practice and procedure provided in the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 made pursuant to the IRA; Meaning of General Jurisdiction.

Result Application refused

Legislation: Workplace Relations Act 1996.

 Industrial Relations Act 1979.

 Industrial Magistrates Court (General Jurisdiction) Regulations 2005.

 Practice Direction No. 2 of 2005 issued by the Chief Magistrate on 2 May 2005.

Case(s) referred to in Decision:

Melrose Farm Pty Ltd t/as Milesaway Tours v Milward and Miles and Miles t/a Milesaway Tours v Milward (2008) 88 WAIG 1751.

Case(s) also Cited:

Nil

Applicant Mr G McCorry of Labourline – Industrial and Workplace Relations Consulting appeared as agent for the Applicant

Respondent Mr P Fraser, Counsel instructed by Ilberys Lawyers, appeared for the Respondents

Reasons for Decision

1          On 22 December 2008 Diane Robertson lodged an application under s81F(4) of the Industrial Relations Act 1979 (IRA) seeking leave to inspect and obtain a copy of a document which was exhibited during the hearing of proceedings in this claim.

2          Section 81F(4) of the IRA provides:

A person who is not a party to the proceedings may, with the leave of the court, inspect or obtain a copy of any document that is part of the court’s record of the proceedings.

3          The Applicant, who is not a party with respect to this claim, seeks leave to examine exhibit 20 and to be given a copy of part of that exhibit.  She consents to an order being made restraining her from disclosing the contents of that document to any person other than the Council of the Civil Service Association of WA Inc (CSA) and any government authority with jurisdiction to inquire into the matters disclosed therein.  In that regard s81F(7) enables this court, when giving leave under s81F(4), to impose conditions on the person’s access to information, including a condition prohibiting or limiting the publication or use of the information.

4          The Applicant, a former president of the CSA and a former chairperson of the First Respondent, understands that part of exhibit 20 may indicate possible impropriety by officials of the CSA in respect of Australian Taxation Office matters.  She is concerned that if any impropriety has occurred that it will reflect adversely upon the CSA, its management and members.  She seeks to examine and copy the document in order to bring it to the attention of the Governing Council of the CSA and any other relevant authority.

5          The application is opposed by the Respondents on technical grounds.  They assert that the application under s81F(4) cannot be entertained because that provision does not empower this court to give a person who is not a party to the claim, brought under the Workplace Relations Act 1996 (WRA) an ability to inspect and copy documents received in proceedings.

6          Section 81F(2) provides, inter alia, that s81F(4) applies in respect of an Industrial Magistrate’s Court’s record of proceedings under its general jurisdiction (as defined in section 81CA).  “General jurisdiction” is defined in s81CA(1) of the IRA to mean jurisdiction under sections 77, 80(1) and (2), 83(1) to (7), 83A, 83B(1) to (9), 83E(1) to (8), 96J, 97V(3), 97VJ(3), 97YC, 97YG, 110, 111 or 112 of the IRA or Part IV of the Long Service Leave Act 1958.

7          The Respondents point out that this claim was brought and determined not as part of this court’s general jurisdiction but rather in its capacity as an “eligible court” as defined in section 717 of the WRA.  Its powers to deal with this claim and to order penalties and/or other remedies sought were not derived from the IRA but rather from the WRA.  Therefore, in dealing with this claim, this court was not exercising its general jurisdiction.  What it did fell outside of what is defined to be its general jurisdiction.  In those circumstances s81F(4) can have no application .  The mere utilisation of the general jurisdiction practice and procedure in dealing with this claim did not bring it within its general jurisdiction.

8          By Practice Direction No. 2 of 2005 the Chief Magistrate directed that in the absence of a prescribed procedure for dealing with Commonwealth claims, the practice and procedure to be followed by the Industrial Magistrate’s Court in cases involving Commonwealth law (other than with respect to small claims) is that provided by the Industrial Magistrates Court (General Jurisdiction) Regulations 2005 (the regulations).  The power to issue that practice direction was not sourced from any particular statutory provision but rather the court’s inherent power to regulate its own practice and procedure.  Indeed His Honour the Chief Magistrate expressed that to be so.

9          The Applicant argues that s81CA(2) enabled the Chief Magistrate to make the aforementioned practice direction which had the effect of bringing Commonwealth claims within the general jurisdiction of this court.  With respect, I disagree.  The Chief Magistrate’s ability to issue the practice direction was not derived from the IRA.  Accordingly I reject the Applicant’s contention that what was said by His Honour Le Miere J in Melrose Farm Pty Ltd t/as Milesaway Tours v Milward and Miles and Miles t/a Milesaway Tours v Milward (2008) 88 WAIG 1751 concerning the regulations has application in this matter.

10      Practice Direction No. 2 of 2005 does not have the effect of bringing Commonwealth claims within this court’s general jurisdiction as defined in s81CA(1).  The utilisation of the practice and procedure provided by the regulations does not change the character or the nature of proceedings brought under Commonwealth law which clearly falls outside this court’s general jurisdiction as defined.  Given that s81F(4) only has application to matters falling within this court’s general jurisdiction, this court is without power to order what is sought.

11      The application is accordingly refused.

G Cicchini

Industrial Magistrate