2022 WAIRC 00619


JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION : MANESCU -v- BAKER HUGHES AUSTRALIA PTY LTD [2022] WASCA 94

CORAM : BUSS J
MURPHY J
SMITH J

HEARD : 14 JUNE 2022

DELIVERED : 27 JULY 2022

FILE NO/S : IAC 2 of 2021

BETWEEN : ADRIAN MANESCU
Appellant

AND

BAKER HUGHES AUSTRALIA PTY LTD
Respondent

[2022] WASCA 94

Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram : S J KENNER CC
R COSENTINO SC
T B WALKINGTON C
Citation : 2021 WAIRC 00561
File Number : FBA 4 OF 2021



Catchwords:

Industrial law - Appeal against decision of the Full Bench of the Commission dismissing an appeal for want of jurisdiction against a decision of Industrial Magistrate's Court on grounds the Industrial Magistrate exercised Federal jurisdiction when dismissing a claim for entitlements under a Federal award and the Fair Work Act 2009 (Cth)

Industrial law - Decision of the Full Bench dismissing the appeal for want of jurisdiction not erroneous in law - In dismissing the claim on grounds of abuse of process the Industrial Magistrate applied the practice and procedure prescribed by State law - Full Bench has no power to review a decision of the Industrial Magistrate's Court when exercising Federal jurisdiction - State procedural laws applied to the resolution of a matter within federal jurisdiction do not operate of their own force but as Commonwealth law

Practice and procedure - Procedural fairness - Right to be heard - No breach by the Full Bench of the hearing rule

Practice and procedure - No error demonstrated by the Full Bench in the construction and interpretation of its power to make an award of costs

Practice and procedure - Appeal to the court frivolous and vexatious - Award of costs made

Legislation:

Fair Work Act 2009 (Cth)
Industrial Magistrate's Court (General Jurisdiction) Regulation 2005 (WA)
Industrial Relations Act 1979 (WA)
Judiciary Act 1903 (Cth)
Magistrates Court (Civil Proceedings) Act 2004 (WA)

Result:

Appeal dismissed
Appellant to pay the respondent's costs of the appeal fixed at $3,000

Category: B

Representation:

Counsel:

Appellant
:
In person
Respondent
:
J Parkinson

Solicitors:

Appellant
:
In person
Respondent
:
Kingston Reid

Cases referred to in decision:


The Western Australian Builders Labourers, Painters and Plasterers Union of Workers v Clark (1995) 76 WAIG 4
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Commissioner of Police v AM [2010] WASCA 163 (S); (2011) 91 WAIG 6
Commissioner of Stamp Duties (NSW) v Owens [No 2] [1953] HCA 62; (1953) 88 CLR 168
Defendi v Szigligeti [2019] WASCA 115
Felton v Mulligan (1971) 124 CLR 367
General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7; (2006) 24 VAR 174
Kazolis v Registrar of Firearms [2018] ACTSC 89; (2018) 331 FLR 395
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Manescu v Baker Hughes Aust Pty Ltd [2017] FWC 2424
Manescu v Baker Hughes Aust Pty Ltd [2018] FWCFB 403
Manescu v Baker Hughes Australia Pty Ltd [2019] WAIRC 871; (2019) 100 WAIG 27
Manescu v Baker Hughes Australia Pty Ltd [2020] WAIRC 683; (2021) 100 WAIG 1166
Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 160; (2021) 101 WAIG 491
Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 558; (2021) 101 WAIG 1480
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 163 ALD 38
Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
Preston v Minister for Immigration and Multicultural and Indigenous Affairs [No 2] [2004] FCA 107
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1
Rogers v J-Corp Pty Ltd [2015] WAIRC 862; (2015) 95 WAIG 1513
Rogers v The Queen (1994) 181 CLR 251
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116
Russell v Duke of Norfolk [1949] 1 All ER 109
Secretary, Department of Human Services v Children's Court of Victoria [2012] VSC 422
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
Slaveski v Rotstein & Associates Pty Ltd [2012] VSCA 291
Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119
Tomlinson v Ramsey Food Processing [2015] HCA 28; (2015) 256 CLR 507
Transport Workers Union of Australia Industrial Union of Workers, WA Branch v Tip Top Bakeries (1994) 58 IR 22
WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378






REASONS OF THE COURT:
1.0 Summary
1 The appellant has appealed to this court from a decision of the Full Bench of the Western Australian Industrial Commission, unanimously dismissing an appeal for want of jurisdiction against a decision of the Industrial Magistrate's Court and ordering him to pay the respondent's costs of the appeal, fixed at $5,150. Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 558; (2021) 101 WAIG 1480 [39].

2 The appeal to the Full Bench was against a decision dismissing an originating claim the appellant made pursuant to the Fair Work Act 2009 (Cth) alleging that the respondent had failed to comply with an award, agreement, instrument or order, namely the National Employment Standards and the Professional Employees Award 2010 (Cth). Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 160; (2021) 101 WAIG 491 [1] and Schedule 1.

3 The appellant has appealed to this court from the decision of the Full Bench on two grounds. First, on the ground that the appellant has been denied the right to be heard. Second, on the ground that the decision is erroneous in law in that there has been an error in the construction and interpretation of the law in the course of making the decision.
4 For the reasons which follow, because the appeal to the Full Bench was an appeal against a decision of the Industrial Magistrate's Court for enforcement of a law of the Commonwealth and instruments made under a law of the Commonwealth, no appeal could lie to the Full Bench, and the appeal must be dismissed.
2.0 Background
2.1 The appellant's claim lodged in the Industrial Magistrate's Court in M 152 of 2020
5 The appellant was employed by the respondent.
6 In his 'Statement on The Grounds of the Case' lodged in the Industrial Magistrate's Court, with the originating claim on 10 September 2020, the appellant stated that: Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 160; (2021) 101 WAIG 491 [1], [3]; Schedule 1; Appeal Book 51 and 53.

(a) he started employment with the respondent in July 1997;
(b) the respondent ended his employment on 16 December 2016;
(c) his last job title (whilst employed by the respondent) was Geoscientist Sr II;
(d) a decision of the Fair Work Commission 'found he was covered' by the Professional Employees Award; Manescu v Baker Hughes Aust Pty Ltd [2017] FWC 2424 [38] (Bull C); the application before the Commission was a claim of unfair dismissal under s 394 Fair Work Act 2010 (Cth)); the finding at first instance that the appellant was covered by the Professional Employees Award was not challenged on appeal; Manescu v Baker Hughes Aust Pty Ltd [2018] FWCFB 403.

(e) his case is that the respondent failed to transition and implement the new workplace laws, the Fair Work Act, and the Professional Employees Award. In particular:
(i) his 'main case is for breaches of "Maximum of 38 weekly hours of work" NES and lack of written negotiated flexibility agreement and hours of work as requested by the Award';
(ii) his case is also for breaches of 'Annual Leave provisions as per NES and Professional Employee Award.'
7 On 18 December 2020, the respondent filed a Form 6 application pursuant to reg 61(1) of the Industrial Magistrate's Court (General Jurisdiction) Regulations 2005 (WA). A Form 6 is the 'court approved form' for an application for a court order.

8 In the application, the respondent sought the following orders:
(a) that claim M 152 of 2020 be struck out pursuant to s 17 of the Magistrates Court (Civil Proceedings) Act 2004 (WA), on one or all of the following bases:
(i) the claim does not disclose any reasonable ground for any claim;
(ii) the claim's purpose is to harass or annoy, or to cause delay or detriment, or is otherwise wrongful;
(iv) the claim is an abuse of the court's process; or
(v) the claim is frivolous, vexatious, scandalous or improper;
(b) alternatively, an order of summary judgment in the respondent's favour, and dismissing M 152 of 2020 on grounds that the claim has no reasonable prospect of succeeding, pursuant to s 18 of the Magistrates Court (Civil Proceedings) Act.
9 Section 17(1) and (2) of the Magistrates Court (Civil Proceedings) Act provides as follows:
17. Striking out, Court's powers as to
(1) The Court may strike out all or a part of a case statement if -
(a) any claim in it is outside the Court's jurisdiction; or
(b) it does not disclose any reasonable grounds for any claim, or for any defence, in it; or
(c) its purpose is to harass or annoy, or to cause delay or detriment, or is otherwise wrongful; or
(d) it is an abuse of the Court's process; or
(e) it is frivolous, vexatious, scandalous or improper.
(2) If the Court strikes out all of a case statement the Court may give judgment accordingly without a trial.
10 The respondent's application to strike out the appellant's claim in M 152 of 2020 was heard by Industrial Magistrate Hawkins on 20 January 2021.
11 On 11 June 2021, Industrial Magistrate Hawkins made orders granting the application and dismissing the appellant's claim. Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 160; (2021) 101 WAIG 491 [65] - [66].

12 Industrial Magistrate Hawkins found the matters pleaded as the appellant's claim (as set out in the originating claim and further and better particulars) were an abuse of process. The basis for her Honour's finding was that the raising of these matters in the claim before her in M 152 of 2020: In making this finding her Honour applied the well-established principle referred to in Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393 (Mason CJ, Deane and Dawson JJ) and more recently in Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [10] - [11] (Buss JA) [118] (Murphy JA) and Tomlinson v Ramsey Food Processing [2015] HCA 28; (2015) 256 CLR 507 [26] (French CJ, Bell, Gageler and Keane JJ).

(a) constituted an attempt to relitigate matters which had been the subject of determination in a previous claim against the respondent in M 234 of 2018 (which claim had been dismissed by Industrial Magistrate Scaddan on 12 December 2019) Manescu v Baker Hughes Australia Pty Ltd [2019] WAIRC 871; (2019) 100 WAIG 27 [57] - [65].
; or
(b) was an attempt to litigate matters which ought reasonably to have been raised in the previous claim.
13 Having found for the respondent on this basis, Industrial Magistrate Hawkins did not find it necessary to consider whether summary judgment should be entered in favour of the respondent. Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 160; (2021) 101 WAIG 491 [67].

2.2 The appellant's prior claim lodged in the Industrial Magistrate's Court, and the first appeal to the Full Bench
14 In the appellant's prior claim against the respondent in M 234 of 2018, the appellant claimed that the respondent had failed to comply with the Professional Employees Award and/or the Western Australian Professional Engineers (General Industries) Award 2004 (WA). Manescu v Baker Hughes Australia Pty Ltd [2019] WAIRC 871; (2019) 100 WAIG 27 [6].
In this matter he claimed he was not paid:
(a) overtime during his 20 years of service with the respondent and its predecessors; and
(b) an incentive bonus until the second half of 2005. Manescu v Baker Hughes Australia Pty Ltd [2019] WAIRC 871; (2019) 100 WAIG 27 [8] and [12].

15 In the hearing before Industrial Magistrate Scaddan, the appellant led no evidence about the applicability of the Western Australian Professional Engineers (General Industries) Award, and relied solely on the applicability of the terms of the Professional Employees Award. Her Honour found there was no contravention of the Professional Employees Award because there was no provision in the award requiring the payment of overtime rates on an hourly basis for work carried out over the ordinary hours of the 38 hour week, or in the National Employment Standards made under the Fair Work Act. Her Honour also found that s 7(aa) and s 7(b) of the Minimum Conditions of Employment Act 1993 (WA) did not apply to his overtime claim for time worked in excess of 38 hours a week.
16 In respect of the appellant's claim of a failure to pay a bonus or incentive payment, her Honour observed the contravention was alleged to have occurred some 13 to 17 years out of time. Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 160; (2021) 101 WAIG 491 [39].
For this reason, her Honour found the claim was statute barred under the Fair Work Act, or alternatively, under s 82A of the Industrial Relations Act 1979 (WA) as the application was made well out of the 6 year time limit. Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 160; (2021) 101 WAIG 491 [40] - [45].

17 The appellant lodged an appeal from the decision made by Industrial Magistrate Scaddan in M 234 of 2018, on the ground that he was denied a fair hearing.
18 This appeal was dismissed by the Full Bench on 6 August 2020 for want of jurisdiction. Manescu v Baker Hughes Australia Pty Ltd [2020] WAIRC 683; (2021) 100 WAIG 1166 [15].

19 The Full Bench observed that the appellant's claim in M 234 of 2018 arose from his employment with a national system employer, and sought, at least in part, to enforce entitlements alleged to arise from an award issued under the Fair Work Act, and entitlements said to arise under the National Employment Standards, also set out under the Fair Work Act. Manescu v Baker Hughes Australia Pty Ltd [2020] WAIRC 683; (2021) 100 WAIG 1166 [2].

20 The Full Bench also observed that the appellant recognised that the Full Bench has no jurisdiction to deal with the substance of his claims that arise under the Fair Work Act, but claimed in the appeal that the Full Bench had the characteristics of a court, and it therefore could deal with his appeal as it related to procedural fairness. Manescu v Baker Hughes Australia Pty Ltd [2020] WAIRC 683; (2021) 100 WAIG 1166 [5].

21 In disposing of the appeal against the decision of Industrial Magistrate Scaddan in M 234 of 2018, the Full Bench succinctly summarised the statutory scheme that confers jurisdiction on the Industrial Magistrate's Court to hear and determine claims for enforcement of breaches of the National Employment Standards and awards, and other instruments made under the provisions of the Fair Work Act (which scheme does not confer jurisdiction on the Full Bench to hear and determine any appeal against an exercise of jurisdiction by the Industrial Magistrate's Court under the Fair Work Act).
22 In unanimous reasons, the Full Bench, in the first appeal, stated: Manescu v Baker Hughes Australia Pty Ltd [2020] WAIRC 683; (2021) 100 WAIG 1166 [8] - [14] (original emphasis).

To understand the limits of the Full Bench's jurisdiction relating to matters under the FW Act, it is necessary to look at the scheme of that act. The FW Act provides that specified State and Territory courts have jurisdiction to deal with a claim of contravention of an award made under that act or of the NES. They are described as eligible State and Territory courts, and they are identified in s 12 - The Dictionary of the FW Act. They include '(b) a magistrates court' and '(d) any other State or Territory court that is prescribed by the regulations'.
The Fair Work Regulations 2009 (Cth) (the FW Regulations) define only one other 'eligible State or Territory court' for the purposes of that definition in s 12(d) of the FW Act. It is the South Australian Employment Court.
The Western Australian Industrial Relations Commission is not mentioned in s 12 of the FW Act or in the FW Regulations.
When it comes to appeals against decisions of those eligible State or Territory courts, s 565(1) of the FW Act specifies that 'an appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act'. This is the avenue of appeal described by Colvin J in Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627 at [19].
Although Mr Manescu referred to A/President Smith's decision in Rogers v J-Corp, that the Commission has the characteristics of a court, her Honour used that as a step in finally determining that the Commission is not an eligible State or Territory court for the purposes of the FW Act (see paragraph [94]).
Therefore, although the Full Bench of the Commission has particular characteristics, its jurisdiction is excluded by the FW Act in respect of appeals against decisions of the [Industrial Magistrate's Court] exercising jurisdiction under the FW Act.
The Full Bench does not have the power to review the decision of the IMC exercising jurisdiction under the FW Act, whether for the purpose of examining whether procedural fairness applied or for any other purpose.
3.0 The decision of the Full Bench sought to be impugned by the appellant in this appeal
23 The appellant lodged an appeal against the decision of Industrial Magistrate Hawkins in M 152 of 2020 on 1 July 2021, on grounds that appear to be that: Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 558; (2021) 101 WAIG 1480 [6] - [8].

(a) the respondent, in its strikeout application, omitted to include a page from the appellant's originating claim, setting out particulars of the alleged breaches of the Professional Engineers Award and the National Employment Standards; and
(b) in the first proceedings (M 234 of 2018), Industrial Magistrate Scaddan only dealt with his claims for overtime payments, and the payment of a bonus, and he did not abandon or release the respondent from other claims, including a claim of annual leave.
24 Although the appellant seemed to accept that the Full Bench has no jurisdiction to deal with appeals brought from matters heard in the Industrial Magistrate's Court under the Fair Work Act, he asserted in the appeal before the Full Bench that because the strike out application was made in accordance with (the practice and procedure prescribed by) the Magistrates Court (Civil Proceedings) Act and the Industrial Magistrate's Court (General Jurisdiction) Regulations, the Full Bench had jurisdiction to hear and determine his appeal.
25 The Full Bench listed the appeal for a hearing on 15 September 2021 for the appellant to show cause why the appeal should not be dismissed for want of jurisdiction, under s 27(1) of the Industrial Relations Act.
26 Prior to the hearing, the appellant filed an outline of submissions on 31 August 2021, and the respondent filed its submissions on 7 September 2021, together with a list of authorities.
27 After hearing oral submissions by the parties on 15 September 2021, the Full Bench reserved its decision.
28 On 3 November 2021, the Full Bench delivered its decision dismissing the appeal and ordering the appellant to pay costs. Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 558; (2021) 101 WAIG 1480.
It also published its reasons for decision. Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 558; (2021) 101 WAIG 1480.

29 First, the Full Bench found that there was no doubt (and it had been decided by the Full Bench on two prior occasions, including the first appeal (against the decision in M 234 of 2018) where the appellant was the appellant on the appeal) that under s 565 of the Fair Work Act, an appeal from the Industrial Magistrate's Court when exercising jurisdiction under the Fair Work Act, can only be brought in the Federal Court. Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 558; (2021) 101 WAIG 1480 [17]; and referred also to Rogers v J-Corp Pty Ltd [2015] WAIRC 862; (2015) 95 WAIG 1513.

30 Second, the Full Bench found the conferral of jurisdiction on the Industrial Magistrate's Court by s 539 of the Fair Work Act means that in the disposition of the matter referred to the court under the Fair Work Act, no State jurisdiction exists. Thus, it found that whilst the Industrial Magistrate's Court may exercise its various procedural and other powers under the Magistrates Court (Civil Proceedings) Act and the Industrial Magistrate's Court (General Jurisdiction) Regulations, this does not alter the law that the jurisdiction exercised by the Industrial Magistrate's Court is federal only. For these reasons, the Full Bench found it had no jurisdiction to hear the appeal. Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 558; (2021) 101 WAIG 1480 [21].

4.0 Disposition of this appeal
31 Pursuant to s 90(1)(b) and (c) of the Industrial Relations Act, an appeal lies to the Industrial Appeal Court (among other matters) from any decision of the Full Bench on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, or on the ground that the appellant has been denied the right to be heard.
4.1 Ground 1 - Was the appellant denied a right to be heard in the appeal?
32 In the appellant's particulars of the grounds of appeal, he states that during the show cause hearing the Full Bench:
(a) refused to hear any submissions about a flawed affidavit relied upon by the respondent in the strike out application; Appeal Book, 5, par 26.
and
(b) failed to hear the appellant's submissions about the strike out application jurisdictional exercise arguments. Appeal Book, 5, par 27.

4.1.1 Principles - Right to be heard
33 A power conferred by statute is to be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power. Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 [97] (Gummow, Hayne, Crennan and Bell JJ); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [39]  [41] (Gaudron & Gummow JJ).

34 The principles of procedural fairness require that a party be given an opportunity to present their case and be heard (the hearing rule).
35 The requirements of procedural fairness are not fixed or immutable. Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [156] (Hayne, Crennan, Kiefel & Bell JJ); Defendi v Szigligeti [2019] WASCA 115 [48].
Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the particular circumstances. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ), [48] (McHugh & Gummow JJ); Preston v Minister for Immigration and Multicultural and Indigenous Affairs [No 2] [2004] FCA 107 [28] (French J); Slaveski v Rotstein & Associates Pty Ltd [2012] VSCA 291 [30] (Maxwell P, Warren CJ agreeing); Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 [51] (Newnes JA, Pullin & Murphy JA agreeing). See also Kazolis v Registrar of Firearms [2018] ACTSC 89; (2018) 331 FLR 395 [50].

36 The hearing rule requires a decision-maker to provide a party to proceedings a reasonable opportunity of presenting his or her case.  Russell v Duke of Norfolk [1949] 1 All ER 109, 118.
A breach will give rise to practical injustice where the breach results in the denial of an opportunity to make submissions, and that denial is material to the decision made by the decision-maker. Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 163 ALD 38 [38] (Bell, Gageler & Keane JJ).

37 Cases have acknowledged that the content of procedural fairness is affected by the 'nature' of the 'decision' of which review is sought. Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 (Mason J); WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93 [45] (RD Nicholson J); Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7; (2006) 24 VAR 174 [31] (Maxwell P, Eames & Nettle JJA agreeing); Secretary, Department of Human Services v Children's Court of Victoria [2012] VSC 422 [12] (Dixon J).

4.1.2 Disposition - appellant afforded the right to be heard
38 The issues that the appellant claims he was denied the right to raise in the hearing of the application to show cause before the Full Bench go to the merits of the basis upon which Industrial Magistrate Hawkins upheld the respondent's strike out application.
39 These are issues as to whether the content of the affidavit relied upon by the appellant was defective, and whether his claim in the first proceeding (M 234 of 2018) (being a claim for enforcement and payment for contractual bonuses and overtime) was different to his claim in M 152 of 2020 (being a claim for breaches of a maximum of 38 hours of work, pursuant to the Professional Employees Award and the National Employment Standards, in respect of which he was not seeking any payment but the imposition of a penalty). Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 160; (2021) 101 WAIG 491 [3] and [38]  [40].

40 However, the hearing before the Full Bench was not a hearing as to the merits of the decision of Industrial Magistrate Hawkins in M 152 of 2020 - it was a hearing for the appellant to show cause why the Full Bench had jurisdiction to hear the appeal.
41 Unless the Full Bench could be satisfied that it was properly seized of jurisdiction to hear the appeal, it had no power to consider and adjudicate on the merits of the appellant's arguments which went to these issues.
42 Consequently, there was no breach by the Full Bench of the hearing rule, and for these reasons, ground 1 of the appeal is not made out.
4.2 Ground 2 - Was the decision of the Full Bench erroneous in law?
43 The appellant claims that the decision of the Full Bench was erroneous in law in two respects.
44 The first matter relates to the issue of whether Industrial Magistrate Hawkins was exercising a law of the State by striking out the claim on grounds of abuse of process.
45 The second matter relates to the power of the Full Bench to make an award of costs.
4.2.1 Did the Full Bench erroneously find that when the Industrial Magistrate's Court struck out the appellant's claim in M 152 of 2020 it was exercising federal jurisdiction?
46 The appellant in his written submissions outlined the basis of his argument that Industrial Magistrate Hawkins was not exercising federal jurisdiction when her Honour dismissed his claim, but was exercising the powers of the Industrial Magistrate's Court conferred by laws of the State, namely the Magistrates Court (Civil Proceedings) Act and the Industrial Magistrate's Court (General Jurisdiction) Regulations.
47 In his written submissions, the appellant asserts the Industrial Magistrate's Court struck out his claim on grounds of abuse of process by exercising its implied jurisdiction and the powers conferred by State law. Appeal Book, 20, par 46.

48 The appellant also asserts in his written submissions (without reference to authority) that if he had commenced an appeal in the Federal Court against the strike out decision in M 152 of 2020, because the application was made under State law, the Federal Court would most likely have dismissed the appeal for want of jurisdiction, given there was no order that there be summary judgment (in favour of the respondent) pursuant to the Fair Work Act.
49 The appellant raised this argument in the hearing before the Full Bench to show cause.
50 The Full Bench was correct to find that the conferral of jurisdiction on the Industrial Magistrate's Court by s 539 of the Fair Work Act to determine the appellant's claim that the respondent had failed to comply with the Professional Engineers Award (being an award made under the Fair Work Act and the National Employment Standards prescribed in div 3 to div 12 of pt 2-1, ch 2 of the Fair Work Act), and to strike out M 152 of 2020 on grounds of abuse of process, was not an exercise of State jurisdiction but of Federal jurisdiction.
51 It is also correct that courts have inherent or implied power to prevent their procedures being abused. Rogers v The Queen (1994) 181 CLR 251, 286; Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [4] (Buss JA) and [118] (Murphy JA).
However, Industrial Magistrate Hawkins struck out the appellant's claim pursuant to the express statutory power to strike out all, or part, of a case statement on grounds it is an abuse of the Industrial Magistrate's Court's process, pursuant to s 17(1)(d) of the Magistrates Court (Civil Proceedings) Act.
52 The resolution of a matter within federal jurisdiction (such as s 539 of the Fair Work Act) by the application of non-federal procedural law (such as s 17 of the Magistrates Court (Civil Proceedings) Act and reg 61(1) of the Industrial Magistrate's Court (General Jurisdiction) Regulations) is a matter solely within federal jurisdiction. Consequently, any appeal from the Industrial Magistrate's Court in respect of a claim made under the Fair Work Act lies to the Federal Court, and not to the Full Bench. Fair Work Act 2009 (Cth) s 565(1).

53 In Felton v Mulligan, Windeyer J observed that the existence of federal jurisdiction depends upon the grant of an authority to adjudicate (in this matter the authority conferred by the Fair Work Act to make a claim that the respondent has failed to comply with a federal award or the National Employment Standards) rather than upon the law to be applied for the subject of adjudication.Felton v Mulligan (1971) 124 CLR 367, 393; applied Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1 [54] (Bell, Gageler, Keane, Nettle and Gordon JJ).

54 In this matter, and in many other matters, the law to be applied in the adjudication (determination) of the application to strike out the appellant's claim was State law. However, s 79 of the Judiciary Act 1903 (Cth) picked up and applied the State law as a Commonwealth law.
55 Section 79(1) of the Judiciary Act provides:
The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
56 In Northern Territory of Australia v GPAO, Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553 [80].
Gleeson CJ and Gummow J observed that the object of s 79 of the Judiciary Act is 'to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself'. See also Commissioner of Stamp Duties (NSW) v Owens [No 2]. Commissioner of Stamp Duties (NSW) v Owens [No 2] [1953] HCA 62; (1953) 88 CLR 168, 170.

57 Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ identified in Solomons v District Court of New South Wales Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 [23].
four relevant limitations in the text of s 79:
First, the section operates only where there is already a court 'exercising federal jurisdiction', 'exercising' being used in the present continuous tense. Secondly, s 79 is addressed to those courts; the laws in question 'shall ... be binding' upon them. The section is not, for example, directed to the rights and liabilities of those engaged in noncurial procedures under State laws. Thirdly, the compulsive effect of the laws in question is limited to those 'cases to which they are applicable'. To that it may be added, fourthly, the binding operation of the State laws is 'except as otherwise provided by the Constitution'.
58 In their joint judgment, Bell, Gageler, Keane, Nettle and Gordon JJ in Rizeq v Western Australia comprehensively considered the proper construction and application of s 79 of the Judiciary Act in the context of the exercise of federal jurisdiction by a court and the exercise of powers (conferred by State law) that are incidental and necessary to the exercise of the jurisdiction.
59 In Rizeq v Western Australia, Bell, Gageler, Keane, Nettle and Gordon JJ referred to these features of s 79: Rizeq v Western Australia [81].

(a) Section 79 operates 'to take the text of State law and to apply that text as Commonwealth law'.
(b) Section 79 so operating 'does not alter the meaning of the text of the State law other than to make that text applicable to a federal court exercising jurisdiction in the State even though the State law on its proper construction applies only to a State court'.
60 Bell, Gageler, Keane, Nettle and Gordon JJ also said in Rizeq v Western Australia: Rizeq v Western Australia [84]  [89] (footnotes omitted).

More useful in delimiting the scope of operation of s 79 is the basic distinction between the 'jurisdiction' of a court, in the precise and technical sense in which that term is used in Ch III in referring to federal jurisdiction and distinguishing it from State jurisdiction, and a 'power' that a court is required or permitted to exercise in the execution of jurisdiction.
Drawing that distinction, in a passage later quoted with approval by Gleeson CJ, Gaudron and Gummow JJ in Edensor, Toohey J said in Harris v Caladine:
'The distinction between jurisdiction and power is often blurred, particularly in the context of 'inherent jurisdiction'. But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and 'such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred.'
Drawing the same distinction between 'jurisdiction' and 'power' in PT Bayan Resources TBK v BCBC Singapore Pte Ltd, after referring to the primary signification of 'inherent jurisdiction' as 'the power inhering in a superior court of record administering law and equity to make orders of a particular description', French CJ, Kiefel, Bell, Gageler and Gordon JJ (with whom Keane and Nettle JJ agreed) pointed out that '[t]he question of the scope of the inherent power of [a] Supreme Court to make orders of a particular description is distinct from the question of whether or not the authority of the Supreme Court to adjudicate on a particular exercise of its inherent power is within the 'federal jurisdiction' invested in the Supreme Court by s 39(2) of the Judiciary Act or by another Commonwealth law enacted under s 77(iii) of the Constitution'. Their Honours described the exercise of inherent power by the Supreme Court of Western Australia to make a freezing order in relation to a prospective judgment which would be registrable under the Foreign Judgments Act 1991 (Cth) as 'regulated' by O 52A r 5 of the Rules of the Supreme Court 1971 (WA), which were made under the Supreme Court Act 1935 (WA) 'and relevantly applied by s 79 of the Judiciary Act'.
'Characteristically an exercise of jurisdiction is attended by an exercise of power'. By making State laws that are 'binding' on courts also binding on courts exercising federal jurisdiction, s 79 of the Judiciary Act takes the text of State laws conferring or governing powers that State courts have when exercising State jurisdiction and applies that text as Commonwealth law to confer or govern powers that State courts and federal courts have when exercising federal jurisdiction.
…
Other examples derived from the cases of laws within the purview of s 79 of the Judiciary Act include laws: which regulate the procedure of the court; which limit the court's powers to compel production of documents or disclosure of information; which bar the court absolutely or conditionally by reason of effluxion of time from entertaining a claim; which require or permit the court to stay a proceeding where there has been a submission to arbitration; and which confer authority on the court in specified circumstances to make orders conferring or declaring or altering rights or status. That list is indicative, not exhaustive.
61 In Rizeq v Western Australia, Kiefel CJ also said: Rizeq v Western Australia [12] - [16] (footnotes omitted).

Section 51(xxxix) of the Constitution permits laws to be made by the Commonwealth Parliament which are incidental to the execution of any power vested in the Federal Judicature referred to in Ch III. The Federal Judicature is to be understood to include State courts exercising federal jurisdiction.
The Commonwealth Parliament could make laws directed to those courts respecting the matters which might be commenced in them, the processes to be applied in hearing them and orders made in determination of them, provided those laws are otherwise within the limitations of s 51(xxxix) and Ch III. It would, however, be difficult to make provision for every conceivable proceeding brought before a State court in federal jurisdiction. The solution, or part of it, which has been adopted is the enactment of a general provision. Section 79(1) of the Judiciary Act provides:
'The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.'
Section 80 of the Judiciary Act makes provision for the common law to apply in the exercise of federal jurisdiction but no question here arises as to its application. This case is concerned solely with statute law.
There is another, important, reason why s 79(1) was necessary and which explains both its purpose and its sphere of operation. State laws of the kind mentioned cannot apply of their own force to State courts exercising federal jurisdiction in that State. State legislatures have no constitutional power to make such laws. When an exercise of legislative power is directed to the judicial power of the Commonwealth, it must operate through, or in conformity with, Ch III of the Constitution.
Section 79 fills the gap created by any absence of Commonwealth laws which provide a court with powers necessary for the hearing and determination of a matter and the presence of State laws of this kind which cannot operate of their own force in federal jurisdiction. It operates by 'picking up' State laws and applying them as Commonwealth law.
62 The respondent made the application pursuant to s 17(1) of the Magistrates Court (Civil Proceedings) Act and the Industrial Magistrate's Court (General Jurisdiction) Regulations, and Industrial Magistrate Hawkins exercised the powers conferred by s 17(1)(d) and (2) of the Magistrate's Court (Civil Proceedings) Act to strike out and dismiss the appellant's claim in M 152 of 2020.
63 In the present case, s 17(1)(d) and (2) of the Magistrates Court (Civil Proceedings) Act regulated the exercise by Magistrate Hawkins of the Industrial Magistrates Court's federal jurisdiction to resolve the controversy between the parties, namely whether the appellant's claim in M 152 of 2020 should be struck out on one or all of the bases set out at [8(a)] above and the appellant's claim dismissed. Section 79 of the Judiciary Act picked up and applied s 17(1)(d) and (2) in relation to those proceedings. The Constitution does not 'otherwise provide', within s 79(1), in relation to s 17(1)(d) and (2).
64 For these reasons, the decision of the Full Bench dismissing the appeal for want of jurisdiction was not erroneous, because the Federal Court has exclusive jurisdiction to hear and determine an appeal against a decision of an Industrial Magistrate exercising federal jurisdiction pursuant to the provisions of the Fair Work Act.
4.2.2 Did the Full Bench err in the construction and interpretation of its discretion to make an award of costs, pursuant to s 86(2) of the Industrial Relations Act?
65 The power of the Full Bench to make an award of costs in an appeal from the Industrial Magistrate's Court is found in s 84(5) of the Industrial Relations Act, which at the time of the Full Bench hearing provided:
In proceedings under this section costs shall not be given to any party to the proceedings for the services of any legal practitioner, or agent of that party unless, in the opinion of the Full Bench, the proceedings have been frivolously or vexatiously instituted or defended, as the case requires, by the other party.
66 In the appeal before the Full Bench, the appellant opposed the respondent's application for costs, for the same reasons he resisted the dismissal of the appeal on jurisdictional grounds. The appellant also reiterated his contention that the appeal was not frivolously or vexatiously instituted, because the Industrial Magistrate's Court was exercising its procedural powers under State legislation.
67 The Full Bench observed that:
(a) its power to make an order for costs under s 84(5) is in similar terms to the power of this court in s 86(2) of the Industrial Relations Act to make an order for costs; Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 558; (2021) 101 WAIG 1480 [30].

(b) the construction of s 86(2) and the policy position are well established by High Court and Industrial Appeal authority. The authorities referred to by the Full Bench are: Transport Workers Union of Australia Industrial Union of Workers, WA Branch v Tip Top Bakeries (1994) 58 IR 22, 26 - 27; The Western Australian Builders Labourers, Painters and Plasterers Union of Workers v Clark (1995) 76 WAIG 4; (1995) 62 IR 334, 335 (Kennedy, Rowland and Franklyn JJ); Commissioner of Police v AM [2010] WASCA 163 (S); (2011) 91 WAIG 6 and General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129 (Barwick CJ).

68 In the passages of the authorities referred to by the Full Bench, the principles to be applied when considering whether the power to make an award of costs pursuant to s 84(5) (and s 86(2)) is met, can be summarised as follows:
(1) There must be substantially more established than either a lack of success, or the prospect of a lack of success, before an unsuccessful party can be held to have frivolously or vexatiously instituted or defended an appeal. Not every appeal which is determined to be without merit (either because the court does not have jurisdiction or otherwise) will necessarily have been instituted frivolously or vexatiously. Commissioner of Police v AM [36] (Buss J), (Pullin and Le Miere JJ agreeing).

(2) Whether a person has previously or vexatiously instituted or defended proceedings is objective (not subjective to the person instituting the proceedings). The Western Australian Builders Labourers, Painters and Plasterers Union of Workers v Clark (335) (Kennedy, Rowland and Franklyn JJ).

(3) The meaning of the words 'frivolous' or 'vexatious' is to be understood in the context that a plaintiff ought not to be denied access to a tribunal which deals with the actions of the kind he (or she) brings, unless his (or her) lack of cause of action is clearly demonstrated. The test to be applied has been expressed as 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow the pleadings to stand would involve useless expense'. General Steel Industries Inc v Commissioner of Railways (NSW) (128) - (129) (Barwick CJ).

(4) The power to award costs of a legal practitioner must be applied in the context of the Industrial Relations Act as a whole, and having regard to the relative informality of proceedings before the Commission and the general policy of not awarding costs. Further, the policy envisaged within s 86(2) (and s 84(5)) indicates that it will only be on very rare occasions that the costs of the legal practitioner or agent will be granted. The Western Australian Builders Labourers, Painters and Plasterers Union of Workers v Clark (335) (Kennedy, Rowland and Franklyn JJ); applied Commissioner of Police v AM [35] (Buss J) (Pullin and Le Miere JJ agreeing).

69 The Full Bench found that despite the general policy position as expressed in the authorities, it would only be on very rare occasions that the costs of the legal practitioner would be awarded. However, it made an award of costs because: Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 558; (2021) 101 WAIG 1480 [33] - [44].

(a) the appellant had now commenced two appeals to the Full Bench, both of which were jurisdictionally incompetent; and
(b) it formed the opinion that on any objective assessment, the appeal was manifestly groundless, and was one which could not succeed; and
in these circumstances the appeal had been instituted frivolously.
70 In the appellant's written submissions filed in this appeal, the appellant contends that the Full Bench erred in finding that his case was frivolous, because the Full Bench, 'jumped into the a priori opinion that [the] Strike out application was pursuant to the Fair Work Act'. Appeal Book, 21, par 54.
This contention is not correct, because the Full Bench did not find his case (before the Industrial Magistrate's Court in M 152 of 2020) was frivolous. The Full Bench found that the institution of the appeal to it was frivolous.
71 As Buss J pointed out in Commissioner of Police v AM, the test for enlivening the power to order the payment of legal costs is whether the proceedings have been frivolously or vexatiously instituted or defended, as the case may be, and not whether the proceedings are in fact frivolous or vexatious. Commissioner of Police v AM [27] (Buss J), (Pullin and Le Miere JJ agreeing).

72 Buss J also pointed out in Commissioner of Police v AM, if the court (or in this matter the Full Bench): Commissioner of Police v AM (Buss J), (Pullin and Le Miere JJ agreeing).

[I]s of the opinion, in a particular case, that the proceedings were frivolously or vexatiously instituted or defended, as the case may be, the formation of this opinion enlivens the court's discretion to order the unsuccessful party to pay the costs of any other party for the services of any legal practitioner of that party. It does not, however, follow that where the test for enlivening the court's discretion to award legal costs has been satisfied that an order for the payment of those costs will necessarily be made. Where the test is satisfied, the court may, nevertheless, having regard to the general policy of s 86(2) and all the circumstances of the case, decide, in the exercise of its discretion, to make no order as to costs. See Heidt v Chrysler Australia Ltd (1976) 26 FLR 257, 275 (Northrop J); Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324, 326 (von Doussa J).
73 For an appeal to succeed against the decision of the Full Bench to make an award of costs in favour of the respondent, it must be demonstrated that the Full Bench erred in the construction of the power conferred by s 84(5) of the Industrial Relations Act. See s 90(1) of the Industrial Relations Act 1979 (WA).

74 The appellant has not put forward any submission, or referred to any binding authority that could support a finding that the Full Bench erroneously construed its power to make an award of costs pursuant to s 84(5) of the Industrial Relations Act. The Full Bench addressed the well-established principles that govern the power and discretion for making an award of costs for the services of a legal practitioner.
75 It is apparent that the appellant is dissatisfied with the Full Bench exercising its discretion to make an award of costs. However, no appeal can lie to this court against the exercise of discretion, when the findings made by the Full Bench do not disclose an error in the construction or interpretation of its statutory power to make an award of costs.
76 For this reason, the ground of appeal on this point has no merit.
4.2.3 Disposition - Ground 2
77 Ground 2 of the appeal has not been made out. The findings made by the Full Bench to dismiss the appeal for want of jurisdiction and to make an order that the appellant pay the respondent its costs in the sum of $5,150 do not disclose any error in the construction or interpretation of the Industrial Relations Act, or any other Act, within the meaning of s 90(1)(b) of the Industrial Relations Act.
4.3 Costs of the appeal to this court
78 The respondent seeks an order that the appellant pay its costs of the appeal including costs for the services of any legal practitioner, pursuant to s 86(2) Industrial Relations Act At the time the appeal to the court was instituted, s 86(2) provided that the court may make such orders as it thinks just as to the costs and expenses (including the expenses of witnesses) of proceedings before the court, including proceedings dismissed for want of jurisdiction, but costs shall not be given to any party to the proceedings for the services of any legal practitioner or agent of that party unless, in the opinion of the court, the proceedings have been frivolously or vexatiously instituted or defended, as the case requires, by the other party. Section 86(2) was deleted and replaced by s 91A with effect from 20 June 2022 by the coming into operation of pt 2 of the Industrial Relations Legislation Amendment Act 2021 (WA). Although the appeal was heard after the repeal of s 86(2), the appeal was commenced on 12 November 2021. Consequently, pursuant to s 37(1) of the Interpretation Act 1984 (WA), the respondent's claim for costs is to be determined as if s 86(2) had not been repealed at the time the appeal was heard.
on grounds that:
(a) the Full Bench did not have jurisdiction to hear and determine the appeal;
(b) the appellant had previously had an appeal dismissed on the basis that the Full Bench had no jurisdiction to hear appeals from the Industrial Magistrate's Court exercising federal jurisdiction under the Fair Work Act; and
(c) the appeal to the court is without merit.
79 Although not every appeal to this court which is determined to be without merit will be determined to have been instituted frivolously or vexatiously, this appeal is one of those very rare occasions on which the costs of a legal practitioner should be awarded to the successful party.
80 First, the appellant's grounds of appeal are so obviously untenable they could not possibly succeed, and are also obviously manifestly groundless, or put another way, are so manifestly faulty that none of the grounds of appeal merit any argument.
81 It is well established that where a State court exercises federal jurisdiction, any relevant provisions of State law are picked up and applied as federal law, pursuant to s 79 of the Judiciary Act. There is no basis for any legal argument to the contrary.
82 Second, although the appellant is a self-represented litigant, he pressed this appeal in circumstances where he is well aware that appeals from original decisions of eligible State or Territory courts exercising jurisdiction under the Fair Work Act are governed by s 565 of the Fair Work Act, in respect of which an appeal lies to the Federal Court.
83 The respondent has not filed a bill of costs of the appeal, but seeks an amount of costs for this appeal that is equivalent to the amount awarded by the Full Bench, being an amount of $5,150.
84 There is no prescribed scale of costs applicable to appeals to the Industrial Appeal Court.
85 We note that the hearing of the appeal was very short, and counsel for the respondent was the same counsel who appeared before the Full Bench.
86 Having reviewed the written submissions filed by the respondent in the appeal before the Full Bench, and the written submissions filed by the respondent in the appeal before this court, it appears it would have been necessary for counsel for the respondent to refresh his memory of the issues and applicable legal principles raised in the proceedings before the Full Bench. However, no substantial additional preparation would have been necessary for the hearing of this appeal.
87 Having regard to the fact that there would have been less work to be carried out by the respondent's legal representatives in preparing for, and appearing in the appeal, than in the hearing before the Full Bench, we are satisfied that the respondent should not be awarded an amount of costs in the sum it seeks. We are of the opinion that an appropriate sum for an award of costs in favour of the respondent is an amount of $3,000.
4.4 The orders disposing of the appeal
88 For these reasons, we are of the opinion that orders should be made that the appeal be dismissed, and the appellant pay the respondent's costs of the appeal, in the sum of $3,000.


I certify that the preceding paragraph(s) comprise the reasons for decision of the Western Australian Industrial Appeal Court.

TS
Associate to the Honourable Justice Smith

27 JULY 2022