Saldanha v Fujitsu Australia Ltd [No 2] - [2011] WASC 360

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SALDANHA -v- FUJITSU AUSTRALIA LTD [No 2] [2011] WASC 360

CORAM: CORBOY J

HEARD: 2 MAY 2011

DELIVERED : 22 DECEMBER 2011

FILE NO/S: CIV 1515 of 2010

BETWEEN: MARINA SALDANHA
Applicant
AND
FUJITSU AUSTRALIA LTD
Respondent

Catchwords:

Magistrates Court - Application for review order under s 36 of the Magistrates Court Act 2004 (WA) - Grounds for review - Whether arguable that decisions striking out minor case claim as an abuse of process and dismissing application to amend claim susceptible to review for jurisdictional error or non-jurisdictional error on the face of the record - Whether court might grant relief notwithstanding that the applicant had appealed the decision - Whether a party affected may appear on hearing of application for review order

Legislation:

Magistrates Court Act 2004 (WA), s 36
Magistrates Court (Civil Proceedings) Act 2004 (WA), pt 4
Rules of the Supreme Court 1971 (WA), O 56A

Result:

Review order made; order to be heard by a judge in chambers

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Ms F A Stanton

Solicitors:

Applicant: In person
Respondent: McCallum Donovan Sweeney

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

Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 272 ALR 750
Defendi v Eden Hill Plasterers [2008] WASCA 269
D'Orta‑Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Kirk v Industrial Commission of New South Wales [2010] HCA 1; 239 CLR 531
Lee v St George Bank Ltd [2006] WASC 221
McKay v Commissioner of Police [2006] WASC 189
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
R v Carroll (2002) 213 CLR 635
Re Greg Cockram Magistrate of the Magistrates Court at Perth; Ex parte Miller [2009] WASC 350
Rogers v The Queen (1994) 181 CLR 251
Saldanha v Fujitsu Australia Ltd [2009] WASCA 119
Saldanha v Fujitsu Australia Ltd [2010] WADC 43
Saldanha v Fujitsu Australia Ltd [2010] WASC 105
Saldanha v Fujitsu Australia Pty Ltd [2008] WAIRC 01732
Snook v Lawrence [2007] WASC 111
Walton v Gardiner (1993) 177 CLR 378
Wise v Proprietors of Strata Plan 21513 [2009] WADC 115
Woodley v Minister for Indigenous Affairs [2009] WASC 251

CORBOY J:

The application and the result

Ms Saldanha has been in dispute with her former employer, Fujitsu Australia Pty Ltd, since about late 2007. The dispute concerns benefits that Ms Saldanha claims ought to have been paid under her contract of employment.
Ms Saldanha applied to the Western Australian Industrial Relations Commission (the WAIRC) in March 2008 for orders requiring payment of the claimed benefits. The Full Bench held that the Commission did not have jurisdiction to hear and determine the application: Saldanha v Fujitsu Australia Pty Ltd [2008] WAIRC 01732. An appeal from the decision was dismissed in June 2009 as being incompetent: Saldanha…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] WASC 360
Decision Date: 22 DECEMBER 2011

CaseChat Overview and Summary

The case of Saldanha v Fujitsu Australia Ltd [No 2] was heard by the Magistrates Court of Western Australia. The plaintiff, Saldanha, sought a review order under section 36 of the Magistrates Court Act 2004 (WA) concerning the decisions of the court to strike out a minor case claim as an abuse of process and dismiss an application to amend the claim. The plaintiff argued that the decisions were susceptible to review for either jurisdictional error or non-jurisdictional error on the face of the record.

The central legal issues revolved around whether the court could grant relief despite the plaintiff having already appealed the decision. Additionally, the court had to determine if a party affected by the decision could appear on the hearing of the application for a review order. The plaintiff argued that the court should review the decisions based on the errors identified, while the defendant, Fujitsu Australia Ltd, contended that the plaintiff's appeal should preclude further review.

The court considered the scope of review under section 36 of the Magistrates Court Act 2004 (WA) and the principles governing jurisdictional and non-jurisdictional errors. The court held that the plaintiff's appeal did not automatically bar the review application and that the plaintiff, as an affected party, had the right to appear on the hearing. The court found that the decisions to strike out the claim and dismiss the application to amend were subject to review for non-jurisdictional error on the face of the record, as they involved an evident mistake of law. The court granted the review order, finding that the decisions were indeed reviewable and that the plaintiff was entitled to seek relief.

Orders