Appeal against a decision of the Commission in matter number B 167/2019 given on 5 November 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2022 WAIRC 00097

DELIVERED : Friday, 4 March 2022

FILE NO. : FBA 8 OF 2021

Appellant

AND

Roman Catholic Bishop of Bunbury

Respondent

ON APPEAL FROM: 

Jurisdiction : The Western Australian Industrial Relations Commission

Coram : Commissioner T B Walkington

Citation : 2021 WAIRC 00566

File No : B 167 OF 2019

Catchwords : Industrial law (WA) - Appeal against decision of Commission - Various interlocutory applications - Scope of an appeal under s 49(4) - Applications dismissed

Legislation : Industrial Relations Act 1979 (WA) s 49, s 49(4)    

Result : Interlocutory applications dismissed

Representation:

Counsel:

Appellant : In person

Respondent : Mr B Di Girolami of counsel

Solicitors:

Respondent : Lavan

Case(s) referred to in reasons:

Reasons for Decision

THE FULL BENCH:

Interlocutory applications

1         The above appeal is listed for hearing by the Full Bench on 22 March 2022.

2         The appellant has filed four interlocutory applications. The first application seeks, in effect, to amend his first instance claim before the Commission, to bring in claims for long service leave, sick leave, and superannuation in the amounts of $16,457, $13,272, and $103,000 respectively. This is in addition to his first instance claim, dismissed at first instance and now challenged on appeal, for denied contractual benefits for an alleged three year term, remaining under his contract of employment, in the sum of $345,000.

3         The second interlocutory application seeks discovery of documents from the respondent in relation to a range of subject matter, to assist in establishing his grounds of appeal in the present proceedings.

4         The third interlocutory application brought by the appellant seeks what are described to be admissions, by way of an invitation to the respondent to admit facts, as to the identity of the respondent in the appeal. As far as we can apprehend from the application, the request for the respondent to admit facts as to the identity of the employer, relates to the change of name of the respondent made by order of the Commission at first instance in July 2020: [2020] WAIRC 00385. 

5         The order made by the Commission at that time, followed an application by the appellant to change the name of the respondent from that initially named by the appellant of ‘Mandurah Catholic College’ to the ‘Roman Catholic Bishop of Bunbury’. The appellant in the interlocutory application, refers to subsequent changes to the employing entity of employees engaged in educational institutions in the State, to an incorporated body.

6         The final interlocutory application brought by the appellant, relates to a claim of a conflict of interest asserted against the respondent’s solicitors, Lavan, and also a request for the disclosure of costs and expenditure incurred by the respondent and other employing entities, in relation to the appellant’s litigation against them.

Disposition

7         As was explained by the Full Bench to the appellant during the course of the hearing of the interlocutory applications, an appeal to the Full Bench from a Commissioner under s 49 of the Industrial Relations Act 1979 (WA) is limited in nature.  Section 49(4) provides that:

 (4) An appeal under this section —

 (a) shall be heard and determined on the evidence and matters raised in the proceedings before the Commission; and

 (b) shall, if brought by a person referred to in subsection (3)(b), be dismissed unless, on the hearing of the appeal, that person obtains leave of the Full Bench,

  and, for the purpose of paragraph (a), proceedings include any proceedings arising under section 35(3).

8         As s 49(4) makes clear, an appeal to the Full Bench is to be heard and determined on the ‘evidence and matters raised’ in the first instance proceedings.  It is not an opportunity for a party to attempt to reargue their case at first instance; or to seek interlocutory orders or directions to bolster their case on appeal, in relation to matters not dealt with at first instance. In essence, an appellant is confined to the relevant material included in the appeal book filed in connection with an appeal, as may be supplemented by order of the Full Bench.  Any such supplementation, however, must be confined to the evidence and matters raised in the proceedings before the Commission at first instance.

9         As to the first interlocutory application, it is not permissible for the appellant to seek to, in effect, amend his first instance claim on appeal.  The time to seek leave to amend his claim at first instance was prior to or during the proceedings before the Commission. In relation to the second application for orders for discovery and production of documents in order to support the appellant’s grounds of appeal, again, that is not a permissible course.  This is for the same reasons that we have just outlined in relation to the first application. 

10      As to the third interlocutory application, concerning a request by the respondent to admit facts as to the identity of the respondent, it is relevant to note that the name of the respondent, as mentioned above, was changed by order of the Commission on the application of the appellant. Whilst there might have been subsequent changes to the legal entity employing staff of Catholic education institutions throughout the State, the time for seeking admissions from the respondent in relation to this issue, was prior to or at the first instance proceedings before the Commission.  It is not permissible for the Full Bench on appeal, to now deal with such issues. 

11      The named employer is set out in the notice of appeal brought by the appellant as the named employer reflected in the order of the Commission made in July 2020.  The learned Commissioner did not deal with that issue any further after the making of the order on the application of the appellant. That is the entity against whom the claim at first instance was ultimately asserted, and against whom the appeal is brought, as reflected in the decision of the Commission. Whilst in ground 6 of the appeal notice, the appellant adverts to what he describes as some confusion by the blurring of ‘many employer(s) and “employing authorities”, it is unclear what is asserted. Furthermore, it would be unusual, to say the least, for an appellant to bring an appeal against an order that the appellant had themselves sought at first instance.  Notwithstanding this however, the fundamental difficulty the appellant faces is that the interlocutory application sought falls outside of the scope of the matters to be heard and determined by the Full Bench, having regard to s 49(4) of the Act.

12      The final interlocutory application, which asserts conflicts of interest involving the respondent’s solicitors and discovery of certain matters, is not an issue which is relevant to the proceedings before the Full Bench.

13      As was mentioned to the appellant during the course of the hearing of the interlocutory applications, in the event that the appeal is upheld either in full or in part, and the proceedings are remitted to the Commission at first instance, then it may be possible for the appellant to bring some of the interlocutory applications he has made, in those further proceedings, should that transpire.

14      For the foregoing reasons, the interlocutory applications before the Full Bench must be dismissed.

NOTE: Line 2 of the heading amended by Corrigendum issued 4 April 2022 ([2022] WAIRC 00141).