APPEAL AGAINST THE DECISION TO TAKE DISCIPLINARY ACTION ON 16 APRIL 2018

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2019 WAIRC 00110

DELIVERED : THURSDAY, 28 FEBRUARY 2019

FILE NO. : PSAB 10 OF 2018

Appellant

AND

Director General of the Department of Justice

Respondent

Catchwords : Industrial Relations Law (WA) - Application to set aside summons under s 33(2) of the Industrial Relations Act 1979 - Application considered - Documents sought are records of the court and not the respondent - Relevant procedure is application under s 33(8) of the Magistrates Court Act 2004 - Summons set aside - Order issued

Legislation : Industrial Relations Act 1979 (WA) s 33(2)

  Magistrates Court Act 2004 (WA) s 33, s 38     

Result : Order issued

Representation:

Counsel:

Appellant : In person

Respondent : Mr J Carroll of counsel

Solicitors:

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Lane v Morrison (2009) 239 CLR 230

Reasons for Decision

Ex Temporé

1         Having considered the application to set aside the witness summons which has been made by the respondent we can indicate that we will deal with that matter this afternoon.

2         The summons to witness was issued at the request of the appellant on 11 February 2019 directed to Ms Deanne Bishop who we understand is the Regional Manager Fremantle Peel Magistrates Court of Western Australia, Department of Justice. The summons issued to Ms Bishop seeks the production of a court file of the Magistrates Court in the matter as described as follows “Consumer Trading Claim Court File FRE 1388/2016 RMR Diesel Engineering Pty Ltd and Alan Pavlinovich”. The summons issued by the appellant is in connection with the present appeal before the Appeal Board listed for hearing on 18 March 2019 by an application filed on 19 February 2019.

3         The person summonsed, Ms Deanne Bishop, seeks an order under s 33(2) of the Industrial Relations Act 1979 for cause to be shown why the summons to her should not be set aside. That application is set out in the grounds of the application, on three bases.

4         Firstly, the application contends that the record sought by the summons are records belonging to the Magistrates Court as a court and thus the summons issued to Ms Bishop is ineffective to require her to produce the documents as they are documents which are not in the possession of Ms Bishop but rather the Magistrates Court.

5         Secondly, the contention is that the appropriate course for the appellant is an application under s 33 of the Magistrates Court Act 2004 to seek access to the court file, inspect and take copies of relevant documents, as the case may be.

6         Thirdly the contention is put that regardless of these two issues, that in any event, the content of the court file does not contain material relevant to the disposition of the present appeal.

7         It is trite to observe that the respondent, the Department of Justice, in these proceedings is not the Magistrates Court of Western Australia.  The Magistrates Court of Western Australia is established as a court of record under the Magistrates Court Act 2004. By s 8 of that legislation the court is to have as many Registries throughout the State as the responsible Minister by notice to the Chief Magistrate may determine. As a court of record, the proceedings of the court are preserved. Those records are conclusive and the records of a court of record are the court’s and are not the respondent’s records: Lane v Morrison (2009) 239 CLR 230.

8         Accordingly, there is a procedure in recognition of what I have just said, set out in the Magistrates Court Act in s 33 which was discussed between the parties and the Appeal Board in argument. That procedure enables parties and other persons and persons who may have an interest, to apply to the court to inspect the record; to obtain a copy of a court record; to listen to or to view any other information held by the court in relation to the matter dealt with by the court. We draw attention to s 33(8) for that purpose.

9         In the circumstances in which we have outlined them, the documents sought by the appellant, in the opinion of the Appeal Board, cannot be produced by the person summonsed. They must be the subject of an application to the court under s 33(8) of the Magistrates Court Act 2004, in accordance with the appropriate rules of court. Therefore, the application under s 33(2) of the Act brought by Ms Bishop is granted and there will be an order setting aside the summons.