Clark v Marine Fire & Security Pty Ltd - [2005] WASCA 188

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CLARK -v- MARINE FIRE & SECURITY PTY LTD [2005] WASCA 188

CORAM: WHEELER JA
MCLURE JA
MILLER AJA

HEARD: 18 AUGUST 2005

DELIVERED : 30 SEPTEMBER 2005

FILE NO/S: FUL 86 of 2004

BETWEEN: LESLIE JOHN ANTHONY CLARK
Appellant
AND
MARINE FIRE & SECURITY PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WILLIAMS DCJ
Citation  :BRENZI -v- MARINE FIRE & SECURITY PTY LTD [2004] WADC 79
File No  :APP 26 of 2003

Catchwords:

Appeal - Appeal to District Court from Industrial Magistrate's Court - Workplace Agreements Act 1993 - Whether parties entitled to appear by agent

Legislation:

District Court of Western Australia Act 1969 (WA) , s 39, s 52, s 87

District Court Rules 1996, O 8 r 28(2)
Industrial Relations Act 1979 (WA)
Labour Relations Reform Act 2002 (WA), s 84
Supreme Court Rules, O 4 r 3

Workplace Agreements Act 1993 (WA), s 53, s 61

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A D L Throssell
Respondent: No appearance

Solicitors:

Appellant: Hotchkin Hanly
Respondent: No appearance

Case(s) referred to in judgment(s):

Blake v Norris (1990) 20 NSWLR 300
Braeside Bearings Pty Ltd v HG Brignell & Associates [1996] 1 VR 17
Chamber of Commerce & Industry of Western Australia (Inc) v The Commissioner of Equal Opportunity [2001] WASC 306
Damjanovic v Maley (2002) 55 NSWLR 149
Grace Hosana Pty Ltd T/as The Cheesecake Shop v De Blank [2000] WADC 164
House v The King (1936) 55 CLR 499
Proust v Blake (1989) 17 NSWLR 267
Re Applications of Shephard (1983) 1 NSWLR 96
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Reynolds v Panten (1999) 23 WAR 215
Saraswati v The Queen (1991) 172 CLR 1
Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736

Case(s) also cited:

Nil

WHEELER JA: This is an appeal from a decision of Williams DCJ in the District Court determining the question of whether either of the parties to the appeal before him from a decision of the Industrial Magistrate was entitled to be represented by an agent other than a certificated legal practitioner. His Honour held that neither party could be represented by an agent.
The Act under which the appeal was brought was the Workplace Agreements Act 1993 (WA). It has since been substantially amended, and the proceedings originally brought before the Industrial Magistrate, and the right to appeal from such proceedings, no longer exist. However, the Labour Relations Reform Act 2002 (WA), by s 84, provided that actions of the relevant type commenced in the Industrial Magistrate's Court could be continued and dealt with by that Court and that appeals or further appeals could be brought under the repealed provisions as if the repeal had not occurred, where the proceeding before the Industrial Magistrate was on foot and had not been finally determined before the relevant date. For the purpose of this appeal, therefore, we look at the Workplace Agreements Act as it was on 19 November 2001, when the proceedings in the Industrial Magistrate's Court commenced.
Dealing first with the question of the right to representation in the District Court generally, the position can be summarised as follows. At common law, there is a right to representation by an agent, an expression which includes, but is not limited to, a legal practitioner: see, Chamber of Commerce & Industry of Western Australia (Inc) v The Commissioner of Equal Opportunity [2001] WASC 306. So far as the District Court is concerned, that position is altered by s 39 of the District Court of Western Australia Act 1969 (WA) ("the District Court Act"):
"39. Who may appear
(1)A party to an action, cause or other proceeding may appear before the Court in person or by a certificated practitioner (within the meaning of the Legal Practice Act 2003) or by any person allowed by special leave of the presiding District Court judge, in any case.
(2)A person who is not such a certificated practitioner is not entitled to claim or recover or receive directly or indirectly a sum of money or other remuneration for appearing or acting on behalf of another person in the Court."
Further, s 52 of the District Court Act provides:
"In all respects, except as expressly provided by or under this Act, the practice and procedure of the Court as a court of civil jurisdiction … shall be the same as the practice and procedure of the Supreme Court in like matters."
Section 87 of the District Court Act provides, in subs (1), that:
"Subject to this Act, the practice and procedure of the Court shall be governed by the rules of court, and until provision is made by rules of court or where no special provision is contained in the rules of court, the rules of court of the Supreme Court for the time being in force, so far as applicable, apply to the Court."
Both s 52 and s 87 are apt to pick up O 4 r 3 of the Rules of the Supreme Court1971 (WA) which provides:
"(1)Subject to paragraph (2) … any person … may begin and carry on proceedings in the Supreme Court by a solicitor or in person.
(2)Except as expressly provided by or under any Act a body corporate may not begin or carry on any such proceedings otherwise than by a solicitor."
The District Court Rules1996 (WA) do not expressly provide for representation, although O 8 r 28(2) of those Rules provides:
"Every document prepared by a party for filing pursuant to these Rules shall be signed by such party or his solicitor."
In the absence of any other statutory provision, then, it would be clear beyond argument that neither party in the District Court appeal would be able to be represented by an agent. However, the appellant points to Pt 5 Div 1 of the Workplace Agreements Act as making contrary provision. If that Act, as a later Act dealing specifically with a particular type of proceeding, made provision for representation in the District Court which was different from those provisions of the District Court Act to which I have referred, the later provisions would to that extent impliedly amend the earlier.
The relevant provisions of Pt 5 Div 1 of the Workplace Agreements Act, as it was at the relevant time, were as follows. Section 49 defined "the court" as the Industrial Magistrate's Court "in which an action under this Division has been brought". Section 50 provided that a party to a workplace agreement who claimed there had been a breach of that agreement "may bring an action in an industrial magistrate's court" against the party alleged to be in breach. Section 51 provided that a person who claimed to have been unfairly dismissed in breach of a provision implied in a workplace agreement "may bring an action in an industrial magistrate's court" in respect of the dismissal. Section 52 provided that persons entitled to recover certain amounts pursuant to other provisions of the Act "may bring an action for that purpose … in an industrial magistrate's court". Section 53 relevantly provided:
"53. Representation
In any proceedings under this Division, an employer or employee may -
(a)appear in person;
(b)be represented by an agent; or
(c)be represented by a legal practitioner."
Section 61(1) and (2) provided:
"61. Appeals
(1) A party to the proceedings under this Division before the court may appeal to the District Court against a decision of the court in those proceedings in the manner and in the time prescribed by rules made by the District Court.
(2) A party to an appeal to the District Court under subsection (1) may appeal to the Supreme Court against a decision of the District Court, in the manner and in the time prescribed by rules made by the Supreme Court."
The appellant submits that s 53 gives to each party to the appeal the right to appear in the District Court by an agent. As to this proposition, the reasoning of his Honour in the District Court, adopting the reasoning of the earlier decision of Macknay DCJ in Grace Hosana Pty Ltd T/as The Cheesecake Shop v De Blank [2000] WADC 164 at [31] to [32], was as follows:
"It was said on behalf of the appellant that the right to employ an agent in 'proceedings under this Division' extends to an appeal, given that the right of appeal is created in the division.
However, in my view that is not the case, and the appeal is from those proceedings."
The deceptively simple question, then, is whether an appeal to either the District Court, or to this Court from the District Court, pursuant to s 61, is a proceeding "under this Division" or whether it is a different type of proceeding.
In one sense, it could be said that the appeal to the District Court is a proceeding "under" the District Court Act. Section 50(1)(f) of that Act confers on the District Court jurisdiction in "all other actions or matters in respect of which jurisdiction is given to the Court by or under this or any other Act". However, that characterisation would not, in my view, be decisive. It would be a normal and appropriate use of language, in my view, to describe an appeal to the District Court as being a proceeding "under" both the District Court Act (as the statute creating the Court and investing it with jurisdiction generally), and "under" the statute which creates the particular right of appeal; in the same way one might, for example, describe an appeal to this Court from a decision of a Magistrate in a criminal matter as being one "under" both the Supreme Court Act1935 (WA) and the Justices Act 1902 (WA).
The use of the word "proceedings" does not advance the matter, except to the extent that it is plain that that is a term capable of encompassing an appeal: see, for example, Proust v Blake (1989) 17 NSWLR 267; Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736.
In describing the various sorts of proceedings which may be brought, Pt 5 Div 1 uses a variety of terms. They include "action" (ss 50, 51, 52) which term is clearly intended to mean the initial proceeding in the Industrial Magistrate's Court; "appeal" which as used in s 61 is intended to refer to the proceeding which may be brought in the District Court or in this Court; "proceedings under this Division" (ss 53, 55, 57, 60) and "proceedings under this Division before the court" (s 61).
When one considers the way in which all of those terms are used, it seems to me that the expression "proceedings under this Division" in s 53 is intended to encompass both the original action and the appeal which is brought from it. Where it is intended to encompass the original action only, it appears that the Division uses either the word "action" or, importantly, the composite expression which is found in s 61, "proceedings under this Division before the court". Either of those expressions could have been in s 53 if it had been intended to refer only to proceedings before the Industrial Magistrate. The qualification in s 61 created by the words "before the court" would not be necessary, if it were the legislative intention that the expression "proceedings under this Division" should describe only the proceedings before the Industrial Magistrate.
It also appears to me that the legislative intention that the expression "under this Division" is intended to encompass any proceeding (including an appeal) which exists by virtue of the provisions of that Division, is reinforced by the use in subs (2) of s 61 of the expression "an appeal … under subsection (1)". The legislature is there indicating that an appeal to the District Court is to be regarded as being brought "under" s 61, and therefore "under" Div 1 of Pt 5.
For the reasons set out above, I would respectfully disagree with the conclusion reached by the learned District Court Judge. There are two other matters to which I should refer. The first is s 37 of the Workplace Agreements Act. In the District Court, his Honour relied upon that provision, which reads:
"A party to an appeal under section 35 to the Supreme Court, may appear -
(a)in person; or
(b)be represented by an agent; or
(c)be represented by a legal practitioner."
His Honour suggested that the words of that provision, and the absence of a similar specific provision referring to representation in appeals in s 61, confirmed the view that there was no legislative intention to permit appearance by an agent on an appeal pursuant to s 61. On its face, s 37 does appear to demonstrate a legislative intention to refer specifically to legal representation in appeals, where the statute deals with that subject. However, s 35 created a right of appeal from a refusal by the Commissioner of Workplace Agreements to register a workplace agreement. The Act made it clear that no formal hearing or proceeding was required on an application to register such an agreement; s 30 required only that, if a party requested a "meeting", the Commissioner was required to "meet with" that party.
It can be seen, then, that s 37 created not only an appeal, but the first and only "proceeding" in relation to the registration of workplace agreements. There was no original proceeding of the type created under Div 1 of Pt 5, and it is therefore not surprising that s 37 refers specifically to this Court.
His Honour further noted that there may well be good reason why a distinction would be drawn between the right of appeal under the Division and the right to appear before the Industrial Magistrate, since it is probable that, in many cases, appeals would raise more complex questions in respect of which it would be desirable for a party to be legally represented. It is true that there is a public interest in the effective disposal of litigation in the courts, which is best achieved by employing qualified lawyers. The requirement that a party be represented by a lawyer, rather than by a lay advocate who is unqualified, unaccredited, uninsured, and not subject to any relevant disciplinary code, is well established: see, for example, Damjanovic v Maley (2002) 55 NSWLR 149. That would be a consideration to which it would be appropriate to refer in a case of legislative ambiguity. However, in my view, the careful use of the different terms "action", "proceeding" and "proceedings before the Court" in Div 1 is such that there is an unambiguous demonstration of legislative intention that a party to an appeal be permitted to appear by an agent. The references in s 61 to the appeal being brought "in the manner … prescribed by rules" of the relevant court must, of course, then be read so as to exclude those rules which require legal representation.
During the course of argument, we were referred to portions of the debates in the Legislative Council in which the Minister having the carriage of the Bill for the Workplace Agreements Act indicated that cl 51 (as s 53 then was) permitted representation by agents in appeals, including appeals to the Supreme Court (Hansard, 27 October 1993, 5797). Remarks made in debate, as opposed to what will often be the more considered indication in the Second Reading Speech and Explanatory Memorandum, may often have little weight. However, the debate surrounding this clause in the Legislative Council, and the expression of view by the Minister and others in relation to that clause, which makes it clear that at least those members who spoke were of the view that representation by agents on appeals was desirable, serves to provide some

weak confirmation of the view which I have reached based upon the expressions used in Div 1.

I would therefore allow this appeal.
MCLURE JA: The issue in this appeal is whether the appellant, being a party to an appeal to the District Court from a decision of an Industrial Magistrate's Court under s 51 of the Workplace Agreements Act 1993 (WA) ("Act"), was entitled to be represented in the District Court appeal by an agent other than a legal practitioner.
For the reasons given by Wheeler JA, the relevant law is that applying as at 19 November 2001. The Act was substantially amended in 2002 by the Labour Relations Reform Act 2002 (WA) and has since expired.
Section 39 of the District Court of Western Australia Act 1969 (WA) ("District Court Act") deals with representation in proceedings in the District Court. It provides:
"39. Who may appear
(1)A party to an action, cause or other proceeding may appear before the Court in person or by a certificated practitioner (within the meaning of the Legal Practice Act 2003) or by any person allowed by special leave of the presiding District Court Judge, in any case.
(2)A person who is not such a certificated practitioner is not entitled to claim or recover or receive directly or indirectly a sum of money or other remuneration for appearing or acting on behalf of another person in the Court."
On its proper construction, s 39 has the effect that a party to proceedings in the District Court has the right to appear in person or by a certificated legal practitioner. An agent other than a legal practitioner can only appear by special leave of the Court. On its proper construction, s 39 applies to an appeal in the District Court. It was not suggested otherwise. The public policy underlying provisions such as s 39 is that as a general rule, the public interest in the effective disposal of litigation in the courts is best achieved by parties employing qualified lawyers rather than a lay

advocate who is unqualified, unaccredited, uninsured, and not subject to any disciplinary code: Damjanovic v Maley (2002) 55 NSWLR 149.

The appellant contends that s 53 of the Act conferred on him a right to appear in the District Court appeal by an agent other than a legal practitioner. Section 53 of the Act provided:
"In any proceedings under this Division an employer or employee may -
(a)appear in person;
(b)be represented by an agent; or
(c)be represented by a legal practitioner."
On the appellant's construction, there is an inconsistency in terms between s 53 of the Act and s 39 of the District Court Act resulting in an implied repeal of s 39 of the District Court Act to the extent of the inconsistency. However, there is a strong presumption that the legislature does not intend to contradict itself. As stated by Gaudron J in Saraswati v The Queen (1991) 172 CLR 1 at 17:
"It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other."
Thus, the repeal or amendment of a statute by implication should not be lightly inferred and should not be found unless it is clearly and indisputably contradictory: Re Applications of Shephard (1983) 1 NSWLR 96 at 106 ‑ 107. I am not persuaded that the legislature intended s 53 of the Act to be inconsistent with, or derogate from, s 39 of the District Court Act. To explain that conclusion, it is necessary to address the scheme and content of the relevant Division of the Act.
Section 53 is in Div 1 of Pt 5 of the Act which deals with the enforcement of workplace agreements registered under the Act. Division 1 is headed "Enforcement in industrial magistrate's courts". For the purposes of Div 1, "the court" means the Industrial Magistrate's Court in which an action under Div 1 has been brought (s 49).
The first three substantive sections of Div 1 (ss 50 ‑ 52 inclusive) conferred an entitlement to bring an action in an Industrial Magistrate's Court. Section 50 entitled an employer or employee to bring an action in an Industrial Magistrate's Court for breach of a workplace agreement or breach of an undertaking by an organisation under s 11 of the Act (which dealt with when employee organisations may join in collective workplace agreements).

Section 51 dealt with unfair dismissal. It entitled a dismissed employee to bring an action in an Industrial Magistrate's Court against the employer for relief in respect of the dismissal.
Section 52 entitled a person owed money as a result of a failure to lodge a workplace agreement for registration or because registration had been refused, to bring an action in an Industrial Magistrate's Court to recover the amount owing.
Immediately after creating the rights to bring actions in an Industrial Magistrate's Court, the Act deals with representation. The central question is whether the opening phrase "In any proceedings under this Division …" in s 53 includes an appeal to the District Court the subject of s 61(1).
Sections 54 to 58 inclusive in Div 1 deal with proceedings in the Industrial Magistrate's Court under the rights of action given under one or more of ss 50 to 52. Sections 55 and 57 are instructive. Each section commences with the same opening phrase used in s 53, namely, "In any proceedings under this Division".
Section 55 provides "In any proceedings under this Division, the court is not bound by any decision about the meaning and effect of a workplace agreement made" by arbitration under the Act or by the Industrial Relations Commission under the Industrial Relations Act1979 (WA). Section 57(1) provides "In any proceedings under this Division the court may" make the orders specified therein.
Notwithstanding the opening phrase "In any proceedings under this Division", it is clear from the terms of each of ss 55 and 57 that they relate solely to proceedings commenced in an Industrial Magistrate's Court pursuant to the rights in ss 50 ‑ 52 of the Act. Sections 55 and 57 do not support the contention that proceedings under Div 1 includes an appeal. I infer s 60, which also commences with the same opening phrase as ss 53, 55 and 57 and which deals with proof of workplace agreements, is also confined to original proceedings, being those in an Industrial Magistrate's Court.
Section 61 deals with appeals. It provides:
"61(1) A party to proceedings under this Division before the court may appeal to the District Court against a decision of the court in those proceedings in the manner and in the time prescribed by rules made by the District Court.
(2)A party to an appeal to the District Court under subsection (1) may appeal to the Supreme Court against a decision of the District Court, in the manner and in the time prescribed by rules made by the Supreme Court.
(3)Without limiting the rules of court, where an appeal under this section has been commenced, the Court to which the appeal is made -
(a)may suspend the operation or effect of the decision appealed against until the appeal is determined or is withdrawn; and
(b)may revoke any such suspension."
The term "proceedings" is not defined in the Act. It is capable of a variety of meanings and what it means in each case must depend upon the context in which it is used: Blake v Norris (1990) 20 NSWLR 300 at 306; Proust v Blake (1989) 17 NSWLR 267; Reynolds v Panten (1999) 23 WAR 215 at 225 ‑ 226. A relatively non‑contentious starting point is that the word refers to the means or vehicle by which the subject matter of a dispute is brought before a court for adjudication: Braeside Bearings Pty Ltd v HG Brignell & Associates [1996] 1 VR 17. That is wide enough to potentially include original, interlocutory and appellate proceedings. Whether that is intended in a particular case depends upon the statutory context. Further, it can be accepted that where an Act confers jurisdiction on a Court to adjudicate rights which rights are the subject of proceedings in that Court, the proceedings can be relevantly described as being "under" the Act conferring jurisdiction. The question of statutory construction here is whether the word "proceedings" is intended to include an appeal in the District Court commenced under s 61(1) of the Act.
Subsection (1) of s 61 is not concerned with "proceedings" as such. Like ss 50, 51 and 52, it serves the dual function of, firstly, giving specified persons a right and, secondly, conferring jurisdiction on the nominated body to adjudicate upon that right.
The sole purpose of the phrase "A party to proceedings under this Division before the court" in s 61(1) is to identify those who have a right of appeal to the District Court. Contrast s 65(1) of the Act where any person may apply to the Supreme Court for an injunction. Further, the words "before the court" are apt in a section that deals with the hierarchy of appeals from the Industrial Magistrate's Court and the District Court. It is to draw a very long bow to conclude that the words "before the court" support the conclusion that the phrase "proceedings under this Division" include original and appellate proceedings. If that is the case, the words "before the court" would be expected to appear in ss 55, 57 and 60 of the Act.
In my view, the location of s 53 in the midst of provisions relating to proceedings in the Industrial Magistrate's Court, the use of the same opening phrase in ss 53, 55, 57 and 60 and the purpose of the opening phrase as extended by the words "before the court" in s 61(1) together support the conclusion that proceedings in s 53 excludes an appeal in the District Court commenced under s 61(1) of the Act. There is another indication to that effect.
Section 61(1) provides for an appeal in the manner and in the time prescribed by rules made by the District Court. Order 8 r 28(2) of the District Court Rules 1996 provide:
"Every document prepared by a party for filing pursuant to these rules shall be signed by such party or his solicitor."
Further, O 4 r 3 of the Supreme Court Rules applies in the District Court by virtue of ss 52 and 87 of the District Court Act. Order 4 r 3 provides:
"(1)Subject to paragraph (2) … any person … may begin and carry on proceedings in the Supreme Court by a solicitor or in person.
(2)Except as expressly provided by or under any Act a body corporate may not begin or carry on any such proceedings otherwise than by a solicitor."
Both these rules relate to the manner of conducting an appeal in the District Court and are inconsistent with the appellant's construction of s 53. The external inconsistency between s 53 of the Act and s 39 of the District Court Act could be avoided by construing s 39 as being subject to any other Act and the internal inconsistency between s 53 and s 61(2) of the Act could be avoided by construing s 61(2) as subject to s 53. However, in combination with the contextual considerations to which I have referred, the inconsistencies support the conclusion that s 53 is not intended to apply to appeals.
The appellant relied on ss 35 to 37 of the Act (subsequently repealed) and the Parliamentary debate in support of his construction argument. A party to a workplace agreement had a right of appeal to the Supreme Court from the refusal of the Commissioner of Workplace Agreements ("Commissioner") to register a workplace agreement (s 35). The appeal was to the Supreme Court, not the Industrial Appeal Court established under the Industrial Relations Act. An appeal to the Supreme Court was not confined to the record of the decision appealed against and the Court could receive any further evidence it thought fit (s 36(1)). Section 37 dealt with representation and provided:
"37A party to an appeal under section 35 to the Supreme Court, may appear:
(a)in person; or
(b)be represented by an agent; or
(c)be represented by a legal practitioner."
The Commissioner exercised a purely administrative function which, very unusually, could be reviewed on the merits by the Supreme Court. Such jurisdiction is outside the judicial functions usually performed by higher courts. In any event, s 37 of the Act, in sharp contrast to s 53, was unequivocal in conferring a right of appearance on any agent. In my view, ss 35 to 37 of the Act do not assist the appellant's case.
Finally, the appellant referred the Court to a statement of the Minister in charge of the Workplace Agreements Bill in the Legislative Council (Mr Foss) made during the Committee stage of the debate. The

Bill was first introduced into the Legislative Assembly by the responsible Minister, being the Minister for Labour Relations (Mr Kierath). It contained no clause corresponding with s 53 of the Act. On the motion of the Minister, the Legislative Assembly amended the Bill to include, inter alia, a cl 51 which was subsequently renumbered 53. As is to be expected in light of the history, there was nothing in the Minister's second reading speech on that subject. It appears the Minister proffered no explanation for this or many of the other amendments made during the Bill's passage through the Assembly.

In the course of debate in the Committee stage, Mr Foss informed the Council that the effect of cl 51 (now s 53) was to include appeals. It is this Court's function to give effect to the will of Parliament as expressed in the law even if it is contrary to the clearly expressed intention of the Parliament (Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 520). Further, the way in which a Minister construes a particular clause is only of relevance if, and to the extent, it represents or evidences the intention of the Parliament as a whole. It is unclear whether Mr Foss was expressing a personal opinion on an issue of construction or stating the Parliamentary intention of those on the government benches. In all of the circumstances, I am not assisted by the Parliamentary debate.
For the reasons given, I am satisfied that s 53 does not, on its proper construction, apply to appeals in the District Court.
In his remaining ground of appeal the appellant contends that Williams DCJ erred in not exercising his discretion under s 39 of the District Court Act to allow the appellant to be represented by a person who was not a legal practitioner. An appellate court's role in an appeal from the exercise of a discretionary power is limited (see House v The King (1936) 55 CLR 499). The appellant did not in his grounds of appeal or in his written and oral submissions identify the nature of any express or implied error of law or fact. It is not this Court's role to itself attempt to fill this gap. This ground must fail.
For these reasons, I would dismiss the appeal.
MILLER AJA: I have had the opportunity of reading in draft the reasons for judgment of both Wheeler and McLure JJA. I am of the opinion that McLure JA is correct in her construction of the provisions of the Workplace Agreements Act 1993 when read with s 39 of the District Court of Western Australia Act 1969. I also agree that there is no

substance in the ground of appeal which contends that Williams DCJ erred in not exercising his discretion under s 39 of the District Court Act to allow the appellant to be represented by a person who was not a legal practitioner. I would dismiss the appeal.