Appeal against a decision of the Industrial Magistrate in matter number M 178/2021 given on 25 November 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2022 WAIRC 00728

DELIVERED : WEDNESday, 19 OCTOber 2022

FILE NO. : FBA 9 OF 2021

Appellant

AND

Brian Edward Ravenscroft

Respondent

ON APPEAL FROM:

Jurisdiction : INDUSTRIAL MAGISTRATES COURT

Coram : INDUSTRIAL MAGISTRATE E O’DONNELL

Citation : -

File No : M 178 OF 2021

Catchwords : Industrial law (WA) - Appeal against decision of Industrial Magistrate to enter default judgment - Proper parties to appeal - Legal personality of unincoporated partnership - Whether proceedings can be brought in name of partnership - Jurisdiction of Full Bench limited to decision that is subject of appeal - No power of Full Bench to substitute decision under appeal for another decision - Appeal of interlocutory order not competant - Appeal dismissed

Legislation : Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) reg 4, reg 8, reg 9, reg 41

Industrial Relations Act 1979 (WA) s 7, s 49, s 83(5), s 83(7), s 83E, s 83E(2), s 83E(5),  s 84, s 84(1)

Rules of the Supreme Court 1971 (WA) O 71 r 13 

Result : Appeal dismissed

Representation:

Counsel:

Appellant : In person and with her Dr A E Imam

Respondent : Mr J Carroll of counsel and with him Ms I Inkster of counsel

Solicitors:

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Anderson v Pope (1986) 66 WAIG 1563

Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225

Casino Picture Garden Co v Hewitt [1914] VLR 192

Commissioner of State Taxation v Cyril Henschke [2010] HCA 43; (2010) 272 ALR 440

The Governing Council of North Metropolitan TAFE v State School Teachers Union of WA [2018] WAIRC 00746; (2018) 98 WAIG 1210

Income Tax Commissioners for City of London v Gibbs [1942] AC 402; [1942] 1 All ER 415

Permanent Custodians Ltd v Elite Grains Pty Ltd [No.2] [2016] WASC 23

SJ Mackie Pty Ltd v Dalziell Medical Practice Pty Ltd [1989] 2 Qd R 87

Tobin v Dodd [2004] WASCA 288

Reasons for Decision

THE FULL BENCH:

Background

1         This appeal was purportedly brought by Ms Hui and Dr Imam as the appellants, against a decision of the Industrial Magistrates Court constituted by Industrial Magistrate O’Donnell. Her Honour granted an application by the respondent at first instance, for default judgement under reg 8 of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) on 25 November 2021.  The order of the court was made against Ms Hui and her husband, Dr Imam, as partners in the business conducted by them.  The orders made by Her Honour on 25 November 2021, were made against both Ms Hui and Dr Imam individually, to the effect that default judgement was entered in favour of the respondent and that the determination of penalties and consequential orders was to be adjourned to a date to be fixed.  On 8 December 2021, one day prior to the day on which contravention and penalty orders were made by the learned Industrial Magistrate, the present appeal to the Full Bench under s 84 of the Industrial Relations Act 1979 (WA) was filed.  Ms Hui and Dr Imam seek an order quashing the default judgement order made on 25 November 2021 and the remittal of the proceedings back to the Industrial Magistrates Court.

Proceedings at first instance

2         Ms Hui and Dr Imam were, at the material times, partners in a café business trading as Sinamon (ABN 118 6655 2941) on Albany Highway in East Victoria Park.  The unincorporated partnership was described as ‘Y.D Hui & A.E Imam’. The respondent is an industrial inspector appointed under s 98(1) of the Act and is employed by the Department of Mines, Industry, Resources and Safety.  Ms Hui and Dr Imam also conduct another café business trading under the same name, in Mount Lawley.

3         The following background is from the materials filed in support of the originating claim and the transcript of proceedings at first instance.  As a result of a compliance audit conducted by DMIRS in relation to businesses covered by the Restaurant, Tearooms and Catering Workers Award, the respondent, in the company of another industrial inspector, Inspector Suppiah, visited the premises of Sinamon in East Victoria Park on 18 February 2021.  A Notice To Produce addressed to ‘Y.D Hui & A.E. Imam, Sinamon, 732 Albany Highway East Victoria Park WA 6101’ was served on a staff member of the business at the premises.  The notice sought the production of various employment records for the employees of the business, over the period 30 November 2020 to 14 February 2021, by 5 March 2021.

4         Whilst on the premises, the industrial inspectors requested to view the employees’ timesheets.  While doing so, the respondent alleged that Ms Hui approached the industrial inspectors and prevented them from inspecting the records.  The industrial inspectors then said they made a request for production of records for the period 17 and 18 February 2021 and were told by Ms Hui that the records were kept at her home, and she was not the owner of the business, but an employee.

5         The respondent contended that there was no request for an extension of time and there was no compliance with the Notice.

6         On 8 April 2021, the respondent visited the Sinamon premises in East Victoria Park in the presence of another industrial inspector, Inspector Callaghan.  They spoke to Dr Imam and asked whether he had seen the first Notice. Dr Imam was alleged to have said that he had seen the Notice but had ‘thrown it in the bin’.  On the same visit, the respondent served a second Notice on Dr Imam, requesting the production of employment records for staff of both cafés at East Victoria Park and Mount Lawley over the period 30 November 2020 to 14 February 2021.  The respondent contended that Dr Imam said he had read but did not respond to the Notice and that he would not provide information about his business.  Whilst the second Notice enabled a request for an extension of time to comply, none was made by the due date of 16 April 2021 and the records were not produced.

7         Because of these events, on 13 September 2021 the respondent commenced proceedings against Dr Imam (as the first respondent) and Ms Hui (as the second respondent) separately and as individuals under s 83E of the Act.  As set out in the statement of claim, it was alleged that:

27. The First Respondent:

a. contravened section 102(1)(a) of the Act on 5 March 2021 when, being lawfully required to do so, he failed to produce records for examination by an industrial inspector; and

b. contravened section 102(1)( a) of the Act on 16 April 2021 when, being lawfully required to do so, he failed to produce records for examination by an industrial inspector.

28. The Second Respondent:

a. contravened section 102(1)(a) of the Act on 5 March 2021 when, being lawfully required to do so, she failed to produce records for examination by an industrial inspector; and

b. contravened section 102(2)(a) of the Act between 18 February 2021 and 17 March 2021 by resisting or obstructing industrial inspectors in the performance of their statutory duties.

8         Interim orders were sought under ss 83E(2) and (5) of the Act, to produce employment records, from 1 January 2019 to the date of order.  Final orders were sought for contraventions and the production of employee records.

9         Ms Hui and Dr Imam did not file a response to the claims commenced against them in accordance with the Regulations.  On 25 October 2021 the respondent made an application for default judgement under reg 8 of the Regulations.  The orders sought on default were in the same terms as the orders sought in the originating claim. 

10      In an affidavit filed on 26 October 2021, the respondent said that two industrial inspectors, Inspectors Suppiah and Neville, attended the premises of Sinamon in East Victoria Park on 17 September 2021. Inspector Neville telephoned the respondent to inform him that two copies of the originating claim were served on Dr Imam, each of which was in a sealed envelope, however he had thrown both copies out of the front door of the premises.  One copy was on the footpath and the other was on Albany Highway. 

11      Inspector Neville, in her affidavit filed on 22 November 2021, said she saw Inspector Suppiah speak to a person who identified himself as ‘Ahmed’.  She said that once he was told that they were at the premises to serve some documents on him and ‘Yan’, he said words to the effect he would not accept them. The documents were left on the counter and both inspectors then proceeded to leave the premises.  She then said Ahmed followed them out of the premises and threw the documents out of the front door, with one envelope landing on the shop veranda and the other on the road. 

12      The respondent then gave instructions that the documents were to be left at the door of the business premises. Inspector Neville said she saw Inspector Suppiah pick up both envelopes and leave them at the front door of the café.  They both returned to their vehicle parked across the road.  She said that Dr Imam came out of the café, picked up the documents and, in an agitated state and yelling, walked over to their vehicle and put both envelopes under the windscreen wipers.  Photographs were taken of the documents left at the front door of the premises and on the windscreen of the vehicle.

13      The respondent further said that on their return to the office, the industrial inspectors informed him of these events. Contemporaneous file notes and photographs, evidencing what occurred, were annexed to the respondent’s affidavit, along with the affidavit of service of Inspector Suppiah.

14      Despite service being effected as above, in addition, the respondent referred to steps taken to also have Ms Hui and Dr Imam served with copies of the originating claim by process servers, between 23 September and 6 October 2021 and on 7 October 2021.  These steps were not successful.  Furthermore, a copy of the originating claim was sent to both Ms Hui and Dr Imam by email at the business email address on 12 October 2021.  It was also posted to a residential address, as identified in an Australian Business Register search extract, annexed to Inspector Suppiah’s affidavit of 22 November 2021. 

15      The respondent said he received a copy of an unsigned email in reply on 12 October 2021 and subsequent email correspondence which took place on 13 and 14 October 2021 between the State Solicitor’s Office and Dr Imam. This correspondence suggested that copies of the originating claim were served and received. Despite the time for the filing of a response expiring on 8 October 2021, the respondent, through the State Solicitor’s Office, indicated that it would not seek default judgement for a further 14 days to enable a response to be filed.  No response was filed.

16      As noted the default judgment application was heard before her Honour on 25 November 2021. Dr Imam appeared before the court. The respondent, through its counsel, noted that no response had been filed by either Ms Hui or Dr Imam.  The court was informed that the respondent would not oppose an adjournment to provide further time for a response to be filed.  Dr Imam told her Honour that both he and Ms Hui work and run the café business and didn’t have time to respond to the originating claim.  He requested the matter be adjourned until the second quarter of 2022. 

17      The learned Industrial Magistrate was not satisfied that insufficient time had been provided to respond and noted from the material before the court, that both Dr Imam and Ms Hui had continued to make excuses as to why they had not complied with the respondent’s requests.   Her Honour found that based on the evidentiary material before the court, Dr Imam’s explanation lacked credibility.  The learned Industrial Magistrate entered default judgment for the respondent.  Dr Imam accused the court of bias and left the courtroom whilst the court was still sitting. The matter was adjourned to 9 December 2021 for the determination of penalties and other orders.  On that date, orders were made in the terms as sought in the statement of claim. The total penalty imposed on Dr Imam was $7,300 and on Ms Hui the total penalty imposed was $7,000.

The appeal

18      The notice of appeal was filed on 8 December 2021.  As noted above, this was the day prior to the learned Industrial Magistrate making the final orders in relation to the contraventions and penalties, which were made on 9 December 2021.  The Form 8 Notice of Appeal has the name ‘Ms Desiree Hui’ as the appellant.  The ‘Legal name of organisation or business’ and the ‘Business trading name’ on the Form 8 are both completed as ‘Y.D. HUI & A.E. IMAM’ the ACN or ABN number field completed is ‘11866552941’.  The postal address is ‘732 Albany Highway East Victoria Park’, which is the address of the Sinamon café at that location.

19      The appeal refers to ‘Claim No 178/2021’ and the date cited is 25 November 2021, being the date of the hearing before the learned Industrial Magistrate to determine the default judgment application and the date the default judgment order was made.  The first paragraph of the appeal grounds, which are not expressed as grounds but rather as a narrative, commences ‘On the 25th of November 2021 my partner Ahmed Imam has represented himself and me in a case against the department of mines (industrial relations) …’ (emphasis added). That is not accurate.  Ms Hui was a respondent in her own right and did not appear in the proceedings.  The narrative then refers to various complaints about the conduct of the industrial inspectors and the use of ‘fake affidavits’, alleged ineffective service and that they (Ms Hui and Dr Imam) had not been given enough time to respond.

20      Also, complaints were made that in attempting to explain these matters to the court, the learned Industrial Magistrate was dismissive and had appeared to have made up her mind. Ms Hui asserted her husband became frustrated, and confronted the learned Industrial Magistrate and then walked out of court.  It was also contended by Ms Hui that her husband has Aspergers and can be outspoken, which may give the appearance of aggression or confronting behaviour.  The narrative then explains that both she and her partner work as an accountant and physicist respectively, and along with running both cafés that operate approximately 100 hours per week, including  staff shortages, neither have time for ‘extracurricular’ activities.  It is open to infer, and we do infer, that this latter reference means responding to the respondent’s originating claim at first instance and to participate in the proceedings.

21      The narrative concludes by referring to complaints made by Ms Hui and Dr Imam to various bodies.  In terms of relief, the orders sought are to ‘quash default judgement – remit the matter back to the Industrial Magistrates Court for further hearing and determination’.

22      The notice of appeal, filed electronically, is in the name of ‘D. Hui’.  There is no reference to Dr Imam as an appellant in the notice or the narrative.  The notice of appeal does not bear his name or signature.  On the contrary, the narrative refers to Ms Hui in the first person, as the person instituting, completing and signing the appeal notice.  In addition, the notice of appeal attaches a document entitled ‘Background and Initial Events According to Parties at Sinamon’.  This is referred to by Ms Hui as a ‘report’ of some kind in relation to the interactions between the respondent and Ms Hui and Dr Imam, in relation to the relevant events set out above.

23      Whilst the appeal was originally listed to be heard on 2 May 2022, shortly before that date on 26 April 2022, an application was made by Tan and Tan Lawyers, who had filed a Notification of Representative Commencing or Ceasing to Act, to adjourn the appeal hearing and to seek leave to amend the grounds of appeal.  This application was granted despite opposition from the respondent, to enable Ms Hui and Dr Imam to take legal advice, to amend the grounds of appeal and to be represented on the appeal.  After the amendment to the grounds of appeal were filed, Tan and Tan Lawyers ceased to act and did not appear on the appeal. 

24      Several issues arise on this appeal.  They include:

(a) Who the proper parties to the appeal are;

(b) The relevant ‘decision’ that is the subject of the appeal;

(c) Whether the appeal is competent;

(d) The admission of ‘new evidence’; and

(e) The merits of the appeal itself.

25      We turn now to consider these various issues.

Proper parties to the appeal

26      The respondent submitted that the only appellant is Ms Hui, and Dr Imam has no appeal before the Full bench.  Section 84 of the Act in relation to appeals to the Full Bench from a decision of the Industrial Magistrates Court is relevantly as follows:

84.  Appeal from industrial magistrate’s court to Full Bench

(1) In this section decision includes a penalty, order, order of dismissal, and any other determination of an industrial magistrate’s court, but does not include a decision made by such a court in the exercise of the jurisdiction conferred on it by section 96J.

(2) Subject to this section, an appeal lies to the Full Bench in the manner prescribed from any decision of an industrial magistrate’s court.

(3) An appeal under this section must be instituted within 21 days from the date of the decision against which the appeal is brought and may be instituted by any party to the proceedings in which the decision was made.

…

27      It is clear from s 84(3), that for a person to have standing to appeal, they must have been ‘a party’ to the proceedings before the court. The originating claim at first instance, filed on 10 September 2021 alleging contraventions of the Act, was commenced against ‘Ahmed El Sayed Imam’ as first respondent, and ‘Yan Won Desiree Hui’ as the second respondent (see respondent’s supplementary bundle of materials at pp 1-10).

28      As noted above, at the material time, Ms Hui and Dr Imam were operating the business of Sinamon cafés as an unincorporated partnership with the business name of ‘Sinamon’ (see annexure 1 to the affidavit of Industrial Inspector Suppiah made and filed on 22 November 2021 in the respondent’s supplementary bundle of materials at pp 15-24). 

29      A partnership has no separate legal personality distinct from the individual partners who constitute it: Commissioner of State Taxation v Cyril Henschke [2010] HCA 43; (2010) 272 ALR 440 at [10] per French CJ, Gummow, Hayne, Heydon and Keifel JJ (citing Income Tax Commissioners for City of London v Gibbs [1942] AC 402; [1942] 1 All ER 415 and SJ Mackie Pty Ltd v Dalziell Medical Practice Pty Ltd [1989] 2 Qd R 87).  Despite this, legal proceedings may be commenced or defended by a firm of partners, in the firm name, if the relevant rules of court provide for this.  For example, the Rules of the Supreme Court 1971 (WA) O 71 r 13, provides that partners may sue or be sued in the name of the firm of which they are partners and an action against or by a firm in its name, includes all partners constituting the firm.  The Federal Court Rules 2011 (Cth) rule 9.41 is along the same lines (see too Casino Picture Garden Co v Hewitt [1914] VLR 192).  As to the advantages of this course, in Tobin v Dodd [2004] WASCA 288 Murray J at [49] observed:

Where partners of a firm are sued in their individual names, rather than in the firm name, the obligation is on the plaintiff to ascertain who were the individual members of the partnership at the date of the accrual of the cause of action and to sue them all in their own names - Harris v Beauchamp Bros [1893] 2 QB 534 at 536. The practical difficulties which this entails, not least of which are difficulties of service, could be overcome if the partners are sued in the firm name. Other advantages of suing in the firm name include the ability to enforce any ensuing judgment against partnership property - see Partnership Act 1895, s 28. As the appellant has sued some, but not all, of the partners in the firm at the date of the alleged breach of duty he may have to face these procedural difficulties, and may even be forced to join all the partners before proceeding further with the action. This is because the liability of partners is joint - Partnership Act 1895, s 16 - and the consequent ability of those partners who have been joined in the action to apply to the court for an order staying the proceedings until all other persons so jointly liable with them are added as defendants - RSC O 18, r 4(3).

30      However, that is not what occurred in this case. The proceedings were commenced against both Ms Hui and Dr Imam, in their individual capacities.  There is no equivalent of the above rules of court in either the Regulations or the Industrial Relations Commission Regulations 2005.

31      We are satisfied that only Ms Hui is the appellant.  No appeal is before the Full Bench filed by Dr Imam.  That is the plain effect of s 84(3) of the Act, read with the originating claim and the notice of appeal. Any appeal by Dr Imam would need to be brought separately, accompanied by an application for an extension of time to appeal under the Act.

The relevant ‘decision’ the subject of the appeal

32      The decision from which the present appeal is brought, for the purpose of ss 84(1), (2) and (3) of the Act as set out above, is the order dated 25 November 2021 of the learned Industrial Magistrate, granting the respondent’s application at first instance for default judgement. So much is plain from the notice of appeal and the remedy sought. Additionally, is the fact the date the appeal was filed (8 December 2021), was the day prior to the date the final orders were made by the learned Industrial Magistrate, on 9 December 2021. 

33      As set out earlier in these reasons in relation to the history of the appeal, on 29 April 2022 the Full Bench granted an application to adjourn the appeal, which had been listed for hearing on 2 May 2022.   Amended grounds of appeal were to be filed by 19 May 2022.  On 19 May 2022, purported amended grounds of appeal were filed. Whilst the application to amend cited both Ms Hui and Dr Imam as first and second appellants respectively, for the reasons set out above, the only appellant before the Full Bench on the present appeal, is Ms Hui. 

34      There are several difficulties with the amended grounds of appeal.  First and foremost, is that the preamble to the amendment states that ‘The Appellants appeal from the decision of Magistrate E O'Donnell delivered on 9th December 2021 at the Western Australian Industrial Magistrates Court’. Further, the amended grounds of appeal then continue ‘The Appellants appeal the following decisions made by the Honourable Court …’.  The amended grounds then go on in pars 1 to 5, to purport to appeal against the contravention and the penalty orders made by her Honour on 9 December 2021. The decision of the learned Industrial Magistrate made on 9 December 2021, which decision comprised final orders establishing the relevant contraventions and the imposition of penalties, is not the ‘decision’ which is before the Full Bench on this appeal, for the purposes of ss 84(1), (2) and (3) of the Act.

35      The grant of leave to amend the grounds of appeal made by the Full Bench on 29 April 2022 did, and could only, enable an amendment to the grounds of appeal filed on 8 December 2021 by Ms Hui, that being the appeal against the order of the learned Industrial Magistrate made on 25 November 2021, to grant the respondent’s default judgement application. This is no matter of mere technicality.  It is fundamental to the jurisdiction and powers of the Full Bench on appeal that it is limited to a review of the decision which is the subject of the appeal under s 84 of the Act.  The Full Bench has no jurisdiction or power to review any other decision, such as the later decision made by the learned Industrial Magistrate on 9 December 2021, unless a competent appeal against that decision is before the Full Bench.  Any challenge against those orders would need to be the subject of a separate appeal under s 84 of the Act, accompanied by an application for an extension of time to bring such an appeal.  It is not open to the Full Bench in the exercise of powers under s 27(1) of the Act to amend an appeal that has the effect of substituting the decision under appeal for another decision.

36      Accordingly, in terms of the purported amended grounds of appeal, subject to what follows, it is only ground E, to the effect that Ms Hui contends that the learned Industrial Magistrate erred in not granting an adjournment on the hearing of the default judgement application, and the assertion of a denial of procedural fairness, that can be considered by the Full Bench.

The competency of the appeal

37      In view of our conclusion regarding the ‘decision’ which is the subject of this appeal, being the decision of the learned Industrial Magistrate to grant default judgment, the issue that arises is whether such a decision may be the subject of an appeal under s 84 of the Act.   The respondent contended that given the decision appealed against is the default judgment decision, which is, by its nature, interlocutory and not a final decision, the appeal is incompetent and should be dismissed. Reliance was placed in this regard on the decision of the Industrial Appeal Court in Anderson v Pope (1986) 66 WAIG 1563.

38      The decision of the learned Industrial Magistrate made on 25 November 2021 was to enter judgment for the respondent in default of a response filed by Ms Hui and Dr Imam. The provisions of the Regulations dealing with default judgments are found in regs 4, 8, 9 and 41 which are in the following terms:

…

4.  Terms used

…

default judgment means a judgment without trial given against a party for a failure by the party to comply with these regulations or an order made by the court, and includes a dismissal of a claim for want of service without consideration of its merits;

…

8. Court’s powers to deal with default by party

(1) This regulation does not apply to a failure to comply with the judgment of the court in a case or any order made in or as a consequence of the judgment.

(2) If a party does not comply with these regulations, or an order made by the court, the court may give default judgment against the party.

(3A) Without limiting regulation 6, the court may exercise its powers under subregulation (2) on the application of a party or on its own initiative.

(3) The court may set aside a default judgment and may do so on any conditions it thinks fit.

9. Procedural orders may be made conditional

(1) When making an order under regulation 7 or 8 the court may order that the order will take effect unless the party complies with a particular regulation or order, within a particular time, as specified by the court.

(2) The court may vary or cancel an order made under subregulation (1).

…

41. Setting aside default judgment

(1) When the court gives a default judgment, the party may, within 14 days after the judgment was given, make an application for the judgment to be set aside.

(2) When the court sets aside the judgment in relation to a case other than a CIPPLSL case it must list the case for a pre-trial conference and notify the parties in writing.

(3) When the court sets aside the judgment in relation to a CIPPLSL case it must list the case for hearing and notify the parties in writing.

…

39      The power conferred on the court by reg 8 is plainly discretionary. As set out above, by reg 8(3) of the Regulations, the court has the power, as an exercise of discretion, to set aside a default judgment on conditions that it thinks fit. After her Honour ordered default judgment to be entered on 25 November 2021, no application was made by either Ms Hui or Dr Imam to set aside the order.

40      In general, an order to enter default judgment in favour of a party is not a final order, in the sense that it is open to the party against whom such an order is made, to apply to have the order set aside. Different considerations arise, depending upon whether the default judgment is regularly or irregularly entered (see generally Australian Civil Procedure, Bernard Cairns 12th Edition, Chapter 13).

41      The nature of a default judgment was considered in Permanent Custodians Ltd v Elite Grains Pty Ltd [No.2] [2016] WASC 238.  These proceedings concerned an application to set aside default judgement obtained in default of the filing of a memorandum of appearance.  The default judgement had been on foot for more than three years.  When considering the application to set aside default judgement, Kenneth Martin J addressed the nature of default judgement entered under the Rules of the Supreme Court 1971 (WA).  His Honour observed at [11]:

A default judgment entered under RSC O 13 or O 22 stands in strong contrast, for instance, to a summary judgment of the court obtained under RSC O 14 or O 16, or with a final judgment given after a substantive trial: see RSC O 34 r 8. As regards the interlocutory character of default judgments, see generally Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246, 248 (Gibbs CJ), 256 (Mason J). Ruling that the attempted appeal there to the High Court was incompetent (as the default judgment sought to be appealed against was interlocutory, not final, in character), Sir Harry Gibbs observed at 248:

… An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside.

His Honour was referring to Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423, 440.

42      In Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225, McHugh, Kirby and Callinan JJ commented on the issue of whether, for the purposes of an appeal, an order is final or interlocutory at [25]:

The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them. Accordingly, orders refusing to set aside a default judgment or refusing to grant an extension of time are not final judgments because the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success.

43      The issue of whether an interlocutory, as opposed to a final order, may be the subject of an appeal to the Full Bench arose for consideration in the decision of the Industrial Appeal Court in Anderson.  In that case, it was held that s 84 (as it was then) precluded an appeal to the Full Bench from a decision that did not finally determine the proceedings. The court (Olney and Rowland JJ; Franklin J agreeing), held that in s 84(1) of the Act, ‘decision’ did not include a finding, ruling or determination by the Industrial Magistrates Court that did not finally determine the matter between the parties to the proceedings.  In doing so, the court held that a ‘finding’ as defined in s 7 of the Act, which applies to appeals to the Full Bench from decisions of the Commission under s 49 of the Act, had no application to appeals from decisions of the Industrial Magistrates Court under s 84 of the Act.

44      In The Governing Council of North Metropolitan TAFE v State School Teachers Union of WA [2018] WAIRC 00746; (2018) 98 WAIG 1210, the Full Bench considered an appeal from a decision of an Industrial Magistrate where an interim order was made under ss 83(5) and (7) of the Act, in relation to proceedings brought by the union alleging that the employer had contravened an industrial agreement when taking disciplinary action against an employee. The employer lodged an appeal under s 84 of the Act to the Full Bench, seeking to overturn the order made by the court. The Union made an application to the Full Bench to the effect that the appeal was incompetent and sought its dismissal. The grounds of the application to dismiss being that the interim order made at first instance was not a ‘decision’ for the purposes of s 84, as only orders finally disposing of the proceedings may be the subject of such an appeal.

45      After considering Anderson and subsequent amendments to the Act to insert ss 83(5) and (7), Smith AP (as she then was) said at [37] ‑ [46] as follows:

37 The subsequent enactment of s 83(5) and s 83(7) (by s 155(1) of the Labour Relations Reform Act 2002 (WA)) conferring the power to make orders for the purpose of preventing any further (future) contravention or failure to comply with a provision of an instrument does not, in my respectful opinion, materially affect the role of the Industrial Magistrate's Court from the role of the Industrial Magistrate considered in Anderson v Pope in 1986.  The role of the Industrial Magistrate's Court in 2018 continues as a court vested with the power to enforce instruments by making limited coercive orders.

38 Section 83 confers jurisdiction on the Industrial Magistrate's Court to enforce instruments, including an industrial agreement.  The power to enforce under s 83 is not a power at large to resolve disputes between parties.  It is notable that proceedings instituted by way of an originating claim are penal in nature; that is they are claims for civil enforcement of provisions of instruments by primarily the imposition of a penalty.

39 The mere filing of a discrete application for an interim order does not have the effect at law of the creation of a substantive application.  An application for an interim order under s 83(7) cannot be made unless a substantive application has been instituted under s 83(1).

40 Although the interim order in this matter was made following a separate application made by the union in M 123 of 2018 and the Industrial Magistrate's Court determined the application by making an interim order on 9 August 2018, it cannot be said that the interim order does not constitute a 'finding' within the meaning of s 7(1) of the IR Act:

(a) Firstly, pursuant to s 83(7) an interim order can only be made pending final determination of an application made under s 83(1) (that is the substantive application for enforcement).  A decision on an application for an interim order by operation of s 83(7) made in the course of proceedings does not and cannot operate to finally decide the matter in s 83(1).  Consequently, it follows therefore that an interim order made pursuant to s 83(7) is a 'finding' within the meaning of s 7(1) of the IR Act.

(b) Secondly, the primary function of the Industrial Magistrate's Court under s 83 is to decide and determine the substantive application by making final orders.  An interim order made under s 83(7) cannot operate as a final order.

41 The test for determining whether an order is final is whether an order finally determines the rights of the parties and requires a court or tribunal in determining this question to have regard to the legal rather than the practical effect of the order:  Carr v Finance Corporation of Australia Ltd (1980) 147 CLR 246, 248 (Gibbs, J); Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767; O'Toole v Charles David Pty Ltd (1990) 171 CLR 232.

42 In Metcalf v Permanent Building Society (in liq) (1993) 10 WAR 145, Murray J, with whom Rowland and Seaman JJ agreed, observed in relation to the distinction between final and interlocutory orders (149):

It is clear I think, that such an order is not final, but merely interlocutory, because it is not such as to finally determine the rights of the parties in a principal, rather than subsidiary, cause pending between them.  It is clear that more remains to be done before the final resolution of the issues between the parties is achieved.  This is not a case which requires attention to any fine distinctions or which requires any refinement of the test broadly formulated above.  Expressed in those terms the test has been accepted as flowing from decisions of the High Court in a number of recent decisions in this Court:  see Ex parte Stiles (1989) 2 WAR 270 at 274-275; Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381 at 387-388; Michael v Freehill Hollingdale & Page (1990) 3 WAR 223 at 228; Lewandowski v Lovell (1991) 4 WAR 311 at 312-314.

43 Thus, it is immaterial that whilst an interim order is in force it has force and effect which if steps are required to be taken to comply with an order could result in expense to be paid by a person, such as the payment of wages to an employee.

44 As the respondent points out in its supplementary submissions filed on 7 September 2018, the order made by the Industrial Magistrate was plainly not an order to finally determine the rights of the parties.  The orders:

(a) were expressed to apply only 'until the hearing and determination of the claimant's claim for relief or further order';

(b) provided the parties with liberty to apply;

(c) were made pursuant to the power in s 83(7) to make interim orders 'pending the final determination of the application';

(d) included procedural orders programming the matter to a final hearing, such as by listing the matter for a pre-trial conference and a final hearing.

45 It would be an odd result if an appeal to the Full Bench would lie as of right to the Full Bench of the Commission against an interim order made by the Industrial Magistrate's Court, pursuant to s 83(7) of the IR Act, whereas an appeal against an interim order against a decision of the Commission does not lie as of right under s 49 of the IR Act.  This is because pursuant to s 49(2a) an appeal does not lie to the Full Bench from a decision of the Commission that is a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie.

46 For these reasons, I am of the opinion that the appeal is incompetent and an order should be made that the appeal be dismissed.

46      Senior Commissioner Kenner (as he then was) came to the same conclusion as Smith AP at [72] ‑ [88].  Commissioner Matthews dissented.

47      The decision of the Full Bench was taken on appeal to the Industrial Appeal Court by the employer: The Governing Council of North Metropolitan TAFE v State School Teachers Union of WA [2019] WASCA 120; (2019) 99 WAIG 1378.  A ground of appeal was that the Full Bench was in error in concluding that an interim order made by the Industrial Magistrates Court under s 83(5) and (7) of the Act, may not be the subject of an appeal to the Full Bench under s 84 of the Act. However, after the decision of the Full Bench was delivered, but before the appeal to the Industrial Appeal Court was commenced, the underlying dispute between the parties was settled. The Union discontinued its claim at first instance and took no part in the proceedings before the court.

48      Justice Le Miere (Buss and Murphy JJ agreeing) held that the appeal was moot for these reasons and that in the absence of a contradictor, the court should not finally decide the appeal and that it should be dismissed. In doing so however, Le Miere J suggested, in considering the appellant’s arguments, that they had some substance and that an interim order made under ss 83(5) and (7) of the Act, on its face was an ‘order’ for the purposes of s 84(1) of the Act. Given the majority decision of the Full Bench however, the court declined to decide the issue as there was no opposing argument before it.

49      The issue arising before the Full Bench and the Industrial Appeal Court in the North Metropolitan TAFE cases is not on all fours with the present matter. However, in the absence of the decision of the court in Anderson being reconsidered, it is binding on the Full Bench and must be followed. As was emphasized by Smith AP in North Metropolitan TAFE at [41], when considering the nature of orders under appeal, it is the legal rather than the practical effect of an order that is to be considered when characterizing an order as interlocutory or final. Given that a default judgment order may be set aside by the court under reg 8 of the Regulations, and even if such application is refused, it may be met with a further, subsequent application to set it aside, such orders cannot be regarded as a final decision for the purposes of s 84(1) of the Act. Accordingly, the decision of the learned Industrial Magistrate, the subject of the appeal in this matter must be regarded as interlocutory, and one that does not finally decide the rights of the parties. Applying Anderson, as adopted and applied by the Full Bench in North Metropolitan TAFE, the appeal is incompetent, and it must be dismissed.

50      The respondent made detailed written submissions on the merits of setting aside the default judgment, in the event the Full Bench was not persuaded on the jurisdictional issue, and if the appeal were to be taken as an application to set the decision aside. We refrain from considering and determining these issues, lest there be further proceedings between the parties, especially in circumstances where Ms Hui is not represented. Those matters are best left to another occasion. Similarly, the application by Ms Hui to tender new evidence is also unnecessary to determine.

Conclusion

51      The appeal is dismissed.