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
ON APPEAL FROM:
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
Keep reading for free
Create a free CaseChat account to read Manescu v Baker Hughes Australia Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2022] WASCA 94
- Decision Date
CaseChat Overview and Summary
The court considered the extent to which procedural fairness applied to the decision made by the Industrial Magistrate. It was established that procedural fairness requires a party to be given an opportunity to present their case and be heard. The court found that the Industrial Magistrate had failed to provide the plaintiff with a reasonable opportunity to address the issues regarding the content of the affidavit and the difference between the claims in the two proceedings. As a result, the plaintiff was denied an opportunity to make submissions on these matters, which was material to the decision made by the Industrial Magistrate.
The court held that the Industrial Magistrate had breached the principles of procedural fairness by not providing the plaintiff with a reasonable opportunity to present his case. Consequently, the decision to strike out the plaintiff's application was set aside, and the case was remitted to the Industrial Magistrate for further consideration. The court emphasised that procedural fairness is directed towards avoiding practical injustice, and the requirements of procedural fairness may vary depending on the specific circumstances of the case.
The final orders of the court were that the decision of the Industrial Magistrate to strike out the plaintiff's application was set aside, and the case was remitted to the Industrial Magistrate for further consideration, in accordance with the principles of procedural fairness. The defendant was ordered to pay the plaintiff's costs of the appeal.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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.[25][25] 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). The principles of procedural fairness require that a party be given an opportunity to present their case and be heard (the hearing rule). The requirements of procedural fairness are not fixed or immutable.[26] Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the particular circumstances.[27][26] 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].[27] 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]. The hearing rule requires a decision-maker to provide a party to proceedings a reasonable opportunity of presenting his or her case.[28] 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.[29] [28] Russell v Duke of Norfolk [1949] 1 All ER 109, 118.[29] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 163 ALD 38 [38] (Bell, Gageler & Keane JJ). Cases have acknowledged that the content of procedural fairness is affected by the 'nature' of the 'decision' of which review is sought.[30] 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. 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).[31][31] Manescu v Baker Hughes Australia Pty Ltd [2021] WAIRC 160; (2021) 101 WAIG 491 [3] and [38] ‑ [40].