100421640

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES JOHN PAUL VOLKOFSKY

APPELLANT

 -and-

 CLOUGH ENGINEERING LIMITED

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  SENIOR COMMISSIONER A R BEECH

  COMMISSIONER J H SMITH

DELIVERED TUESDAY, 23 MARCH 2004

FILE NO/S FBA 47 OF 2003

CITATION NO. 2004 WAIRC 10949

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Catchwords  Industrial Law (WA) – Appeal to Full Bench against decision of a single Commissioner – Appeal against decision that agent for applicant not entitled to appear – Agent not registered pursuant to s112A – Ostensible bias – Full Bench found s49(2a) requirement not met – Matter not of such importance that in the public interest an appeal should lie – Appeal dismissed - Industrial Relations Act 1979 (as amended), s7, s29, s31, s49(2a), s97UJ, s112A

Decision  Appeal dismissed

Appearances

Appellant   Mr J O’Dowd

Respondent   Mr N Ellery (of Counsel), by leave

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1          This is an appeal brought pursuant to s49 of the Industrial Relations Act 1979 (as amended) (hereinafter called “the Act”), only against that part of the decision made by the Commission, constituted by a single Commissioner at first instance, on 3 December 2003 (see page 172 of the appeal book (hereinafter referred to as “AB”)), whereby the Commissioner declared, inter alia, “That Mr Justin O’Dowd is not entitled to appear as agent for the applicant for the purposes of s31 of the Act”.  It is against that decision that the appeal purports to be made.  It is not necessary to reproduce the grounds.

BACKGROUND

2          The above-named appellant filed an application in this Commission on 15 May 2003 pursuant to s29(1)(b)(i) and (ii) of the Act alleging that he had been unfairly dismissed from his employment by the respondent, claiming relief therefor, and claiming contractual benefits alleged to have been denied to him.  That application was opposed by a notice of answer filed on behalf of the respondent, Clough Engineering Limited, by the solicitors for the respondent on 5 June 2003.

3          Mr Justin O’Dowd of 12 Maplestone Place, Chapman, ACT, 2611, filed in the Commission, a warrant to appear dated 23 June 2003 purporting to act for the above-named appellant, Mr John Paul Volkofsky, and proceeding under s29 of the Act.

4          By correspondence there was raised a question of jurisdiction, which is not relevant to these proceedings, but, the answer filed included the following:-

“The respondent notes that the applicant has listed Mr Justin O’Dowd as an authorised representative.  Mr O’Dowd is not a registered bargaining agent, accordingly, pursuant to s31(1) and 112A of the Industrial Relations Act 1979 (“Act”), the respondent objects to any appearance or representation by Mr O’Dowd on behalf of the applicant and further seeks an order of the Commission restraining Mr O’Dowd from appearing in the matter.”

5          There is various correspondence about the matter to the Commissioner.  In addition, the matter was dealt with by the Commissioner on written submissions.  There was filed a notice to admit which was served on Mr Justin O’Dowd and Mr Volkofsky, on behalf of Clough Engineering Limited, and filed in the Commission on 1 September 2003 and replied to by a reply to notice to admit, filed on behalf of Mr Volkofsky, on 9 September 2003.

6          The notice to admit (pages 16-17 (AB)) required that, within seven days, Mr Volkofsky admit or deny a number of facts directed to establishing that he has an arrangement with Mr O’Dowd or an entity associated with Mr O’Dowd, verbal or otherwise, to pay for his services or otherwise reimburse Mr O’Dowd for travelling, accommodation or other services as an agent.

7          The reply (pages 19-20 (AB)) in fact admits that Mr O’Dowd is not a registered bargaining agent and does not otherwise answer the notice to admit, even if it were required to.  Mr O’Dowd purported to appear at first instance as an industrial agent within the meaning of s112A of the Act.  I should add that this matter is not concerned with registered bargaining agents under this Act who are persons limited in role and mode of appointment (see s97UJ).  Mr O’Dowd was not a bargaining agent.

8          The Commissioner at first instance, after considering the submissions, in her reasons of 21 November 2003, found, summarised, the following:-

(a)                That Mr O’Dowd did not rely on being a legal practitioner who is permitted to appear in Western Australia in order to represent the applicant in this matter, nor is he a registered industrial agent pursuant to s112. 

(b)               That there is no provision in the Act which allows a person who is not registered under s112A of the Act but who is otherwise carrying on business as an industrial agent, to appear in proceedings in the Commission.

(c)                That in order to appear to represent a person in the Commission, a person purporting to be an industrial agent must be registered, if the person in any way carries on business as an industrial agent or holds himself out as carrying on business as an industrial agent.

(d)               That if an agent is not so registered that person commits an offence.

(e)                That on the balance of probabilities on the information before her, Mr O’Dowd is carrying on business as an industrial agent and must be registered as an agent.

(f)                That it was unclear whether he is receiving a payment for representing the applicant, Mr Volkofsky.

(g)               That even if he was not receiving a payment, he was carrying on business for the purpose of s112A (see Jeakings and Another v State School Teachers Union of WA and Others (1998) 78 WAIG 1139 at 1141).

(h)               That Mr O’Dowd had not provided any evidence that he was not carrying on the business of an industrial agent.

(i)                 That he had previously acted as a representative or agent in the Australian Industrial Relations Commission, but that his industrial advocacy business has been deregistered, and it was not clear that he was not currently carrying on business as an industrial agent.

(j)                 That he was seeking to appear as the applicant’s agent in this matter which is the work which he has been undertaking on a consistent basis for some years. 

(k)               That given his history of representation in the Australian Industrial Relations Commission he was carrying on business as an industrial agent for the purposes of s112A and was not a registered industrial agent in accordance with the Act.

(l)                 That he would not therefore be permitted to represent the applicant in relation to the application.

9          I would add, although it is not relevant to this appeal, that at first instance, the Commissioner determined that she had jurisdiction to hear and determine Mr Volkofsky’s application which was another matter in dispute.

THE APPEAL PROCEEDINGS, ISSUES AND CONCLUSIONS

10       The appeal herein was heard by the Full Bench on 4 March 2003.  Mr O’Dowd purported to appear as agent for Mr Volkofsky on the appeal.  He had filed a warrant to appear as agent dated 1 January 2004 in the Commission on 2 January 2004.  This was subsequent to the filing of the notice of appeal. 

11       On the day of the hearing of the appeal, the Full Bench allowed Mr O’Dowd to be heard, and, with the consent of Mr Ellery (of Counsel) for the respondent, heard the question of the s49(2a) application and the appeal proper.

OSTENSIBLE BIAS

12       Next, Mr O’Dowd made a somewhat unusual submission on behalf of Mr Volkofsky.  It was a submission that I as the President could properly be seen to be ostensibly biased.  However, he did not, as one would normally have expected him to, submit that I should disqualify myself from sitting with my colleagues to hear and determine the appeal.  That marked the unusualness of the submission.  As I understand the submission, such ostensible bias might be perceived, applying the tests laid down in a number of authorities.  These include for the purposes of these principles, Re Polites and Another; Ex parte The Hoyts Corporation Pty Limited and Others [1991] 173 CLR 78 and Re JRL; Ex parte CJL [1986] 161 CLR 342.  Mr O’Dowd, however, made it clear in submissions that his client did not require me to cease to hear the appeal, but as I understood it, wished to ensure that he was not prevented by any plea of waiver from raising the point of bias if his principal did appeal.

13       These questions were also considered in detail in a large number of authorities in this Commission, including most appositely Commissioner of Police for Western Australia v Civil Service Association of Western Australia Inc (2001) 81 WAIG 3026 at 3027-3028 (FB) and the authorities referred to therein.  The Full Bench drew Mr O’Dowd’s attention to that authority.  His submission of bias seemed to rely on the fact that the appellant had made an application, PRES 2 of 2004, Volkofsky v Clough Engineering Limited (2004) 84 WAIG 239, pursuant to s49(11), to the Commission constituted by me as the President and seeking a stay of the operation of the decision appealed against in these proceedings.  That application was opposed by the respondent and heard and determined on 23 January 2004.  It was dismissed that day for lack of jurisdiction.

14       He made no submissions about the important matters decided in the Commissioner of Police case (op cit).  (I should also add that I refer to Carter v Drake and Others and Drake and Others v Carter and Others (1992) 72 WAIG 736 (PRES) which was in turn referred to in the Commissioner of Police case (op cit)).

15       The Full Bench directed Mr O’Dowd to make his full submissions directed to ostensible bias on the part of the President and to the President disqualifying himself.

16       Mr O’Dowd then advised the Full Bench that his principal entirely waived his rights to raise the matter of bias and the appeal was heard and determined on that basis.

17       Mr Ellery, who appeared for the respondent, submitted in any event, briefly, that there was no ostensible bias on the well known tests to which I have referred above.  First, however, I would observe, and it was not submitted otherwise by Mr O’Dowd, that the President and no one else is required by the Act to hear s49(11) applications and also to preside over the Full Bench, including s49 appeals to the Full Bench.

18       The Commission cannot be constituted in these matters without the President.

19       The doctrine of necessity therefore applies and no submission of ostensible bias can be made in relation to the President (see the Commissioner of Police case (op cit), and Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 per McHugh and Gaudron JJ, as well as Carter’s case (op cit)).

20       Next, even if ostensible bias were a matter which could be raised, which it could not, for the reasons expressed in the Commissioner of Police case (op cit), it was simply not a tenable submission.

S49(2a) – DOES AN APPEAL LIE?

21       S49(2a) of the Act provides as follows:-

“An appeal does not lie under this section from 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.”

22       S49 of the Act prescribes, subject to the section, the right of appeal to the Full Bench in the manner prescribed from any decision of the Full Bench.

23       In s7 of the Act, the following relevant definitions appear.  ““Decision”, includes award, order, declaration or finding;” ““Finding” means a decision, determination or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate”.

24       It was the respondent’s submission that the decision appealed against was a “finding”.  It was the appellant’s submission that the decision at first instance was not a “finding” as defined because it finally disposed of the matter to which the proceedings related.

25       It was submitted by Mr O’Dowd, on behalf of the appellant, that the question of his right to appear as agent and to act as agent, were separate and self contained.  Thus, the decision at first instance finally determined and disposed of that “matter” being the matter to which the proceedings related.  Further, Mr O’Dowd in submissions, disagreed with the proposition that the matter to which the proceedings related is and was the application by Mr Volkofsky, the appellant, making claims and seeking relief under s29(1)(b)(i) and (ii) of the Act.  That that matter included the requirement to determine the questions of right of audience and practice and jurisdiction as steps only in those proceedings having no separate existence of their own, was not a proposition with which Mr O’Dowd agreed.  He did not submit that the finding of jurisdiction made in the same “hearing” on the written submissions at the same time was not a “finding”.  It was not necessary of course, to decide that because it was not a ground of appeal but, it seems to me that such a matter was a “finding” as defined and in its nature was indistinguishable from the “finding” appealed against.

26       “Proceedings” are not defined in the Act.  However, applying by analogy and with modifications to classification and definition of proceedings in the Supreme Court of this State and other Supreme Courts and courts (see Cairns, “Australian Civil Procedure” 3rd edition pages 79-80), proceedings in this Commission are commenced in general by application or other originating process, unless they are appeal proceedings when they are commenced by a notice of appeal.

27       In any event, proceedings are commenced and are prescribed to be commenced by application under various sections of the Act (s32, s44, s29, s54 and others).

28       In this case, of course, the proceedings at first instance commenced by an application under s29 of the Act. 

29       A step in the proceedings, such as that at first instance, which involved an interlocutory application or similar other step, is determinative only, and does not involve the final determination of the matter the subject of the proceedings of that limited subordinate matter.  There is no determination of the proceedings and it is no separate proceeding having an existence of its own.  Such an application or step is made or taken only because the proceedings in which it is made or taken were instituted.  That was clearly and indubitably the case with the decision appealed against in this matter which was made to determine a question which arose out of, and in the course of, the determination of the proceedings in the Commission instituted by a s29 application.

30       The application under s29(1)(b)(i) and (ii) by Mr Volkofsky, the appellant (the applicant at first instance), is yet to be heard and determined.  That is the matter of the application requiring hearing and determination, namely, the claims under s29(1)(b)(i) and (ii) which constitute the “matter to which the proceedings relate” within the definition of “finding”.  That is, it is the industrial equivalent of a justiciable issue or set of issues which constitute the matter in dispute between the parties.  Further, the proceedings to which the matter relates are the proceedings commenced by applications filed by Mr Volkofsky in this Commission pursuant to s29(1)(b)(i) and (ii).  In that the decision appealed against does not and does not purport to finally determine or dispose of the matter of the alleged unfair dismissal and/or the claim for contractual benefits, it is a finding as defined.  That is entirely clear for the reasons which I have expressed.  Thus, unless the requisite opinion is reached by the Full Bench pursuant to s49(2a), the appeal does not and cannot lie.

SHOULD THE APPEAL LIE?

31       The application of s49(2a) has been considered by the Full Bench in a number of appeals over the years.  (Recently, the Full Bench considered the application of the section in Burswood Resort (Management) Ltd v ALHMWU (2003) 83 WAIG 3556, per Sharkey P at pages 3563-3564 and 3568 per Smith C).

32       The crux of the decision at first instance and the reasons therefor, were that the respondent took objection to Mr O’Dowd having right of audience in the Commission, as an agent, under s31 of the Act. 

33       The Commissioner found that Mr O’Dowd was not entitled to appear as agent in the proceedings at first instance because he was carrying on business as an industrial agent and was not registered and was not entitled to appear, having regard to s112A(1) and in particular to s112A(2) also of the Act.

34       In order for an appeal to lie under s49(2a), the Full Bench must form an opinion that the matter is of such importance that, in the public interest, an appeal should lie.

35       It is quite clear that it is not a matter public interest if it is not of sufficient importance.

36      I would also add that the relevant provisions of s112A were considered by me in Jeakings and Another v State School Teachers Union of WA and Others (op cit), and both sides referred to those reasons.

37      The main submissions for the appellant, at least as I understand them, were that that the Full Bench should reach the requisite opinion under s49(2a) of the Act for the following reasons:-

(a)                It was necessary for agents and prospective agents throughout this country, particularly having regard to s3, to know what rights of audience they had in the Commission.

(b)            It was of importance that Mr Volkofsky should be able to engage the representative of his choosing, implicitly, as I understood it, in the interests of fairness.

38      There were opposing submissions from Mr Ellery of counsel for the respondent, in which he, inter alia, referred to Alderson v Kingswood College (2003) 83 WAIG 215 (FB), and on the main basis that the question raised on the appeal was a confined procedural question relevant to Mr O’Dowd and Mr Volkofsky and never likely to be relevant to anybody else.

39      Thus, so the submission went, there was no great public interest in the matter.  Mr Ellery also submitted that this was a straightforward application of the day to day jurisdiction of the Commission exercised by the Commissioner at first instance, in the course of which, she dealt with a matter of no wide import which was unlikely to be of relevance to any class or category of individuals or potential representatives (see Burswood Resort (Management) Ltd v ALHMWU (op cit)).

40      It was also submitted by Mr Ellery that there was ample opportunity for Mr Volkofsky to instruct Mr O’Dowd to deal with this matter by adducing evidence of his right of audience or otherwise because this matter was raised before the arbitration proceedings, in conciliation proceedings on behalf of the respondent.

41      I would make the following observations and findings.

42      First, the matter does not involve a matter of law of any complexity.  Jeakings and Another v State School Teachers Union of WA and Others (op cit) is authority for the relevant construction of s112A and s31 and the phrase “carrying on business”.

43      Second, the obligation to be registered imposed by s112A is clear, and expressed in clear terms, and should be to any person wishing to practise as an industrial agent in this State.

44      Third, this matter was resolvable at first instance very readily by Mr Volkofsky instructing Mr O’Dowd to adduce evidence, which evidence was not adduced, that he was not carrying on business within the meaning of s112A or by registering as an agent under the Act.

45      Fourth, whilst it is desirable that a person should have her/his own choice of barrister and/or solicitor or agent, that issue, against the background of the practicalities of litigation is not always achievable, and the necessity to change representation even during the course of litigation, is not uncommon.  That consideration in the circumstances of this case, was not a wide ranging matter of principle and could not be held to be.

46      Fifth, this was a straight forward matter of exercise of jurisdiction in a procedural matter, the solution to which lay in the hands to some extent of Mr Volkofsky.

47      Sixth, I am not at all satisfied for those reasons, that the question raised at first instance and on this appeal, has any relevance or substantial relevance beyond the parties to this case and Mr O’Dowd.

48      Seventh, the decision is the sort of finding made in the course of proceedings which the Full Bench, for the reasons expressed in Burswood Resort (Management) Ltd v ALHMWU (op cit) should be and is reluctant to regard as important within the meaning of s49(2a).  That is because that sort of procedural decision should not be readily interfered with by the Full Bench.

49      Eighth, the matter is still readily resolvable by Mr Volkofsky and Mr O’Dowd.

50      Ninth, it is very much in the public interest and that of the parties, and consistent with the objects of the Act, that the resolution of Mr Volkofsky’s claim for relief and the respondent’s opposition to it be delayed no further.

51      Tenth, I am not at all satisfied that there is any merit in the ground of appeal which alleges that, at first instance, it was for the respondent to prove that Mr O’Dowd should have been registered as an agent, or that he had no right of audience whilst he remained unregistered.  In my opinion, Mr Volkofsky had the onus of establishing that Mr O’Dowd was entitled to be heard as his agent without being registered.

52      It is also, in my opinion, part of an agent’s duty to the Commission to act so that, consistent with the agent’s duty to his principal, he is frank with and assists the Commission.  A matter of registration as agent or the necessity therefor forms part of that duty.

53      For all of those reasons, the appellant did not establish, as he was required to do, that the Full Bench should hold the opinion that the matter of the appeal is or was of such importance that in the public interest an appeal should lie, and I joined my colleagues in so finding.

54      Thus, the appeal did not lie and was dismissed.

MR O’DOWD’S APPEARANCE UPON THE APPEAL

55      I would also add, although it is probably not necessary to so find, that there was no or no sufficient evidence that Mr O’Dowd was entitled to a right of audience before the Full Bench or in this Commission pursuant to s112A and s31 of the Act.

FINALLY

56      For all of those reasons, I agreed with my colleagues to dismiss the appeal.

SENIOR COMMISSIONER A R BEECH:

57      I have had the benefit of reading the Reasons for Decision of His Honour, the President.  I agree and have nothing to add.

COMMISSIONER J H SMITH:

58      I have had the benefit of reading the reasons in draft to be published by the President.  For the reasons His Honour gives, I agree the Appeal should be dismissed and I have nothing further to add.

THE PRESIDENT:

59      For those reasons, the appeal was dismissed.