WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES COTTER FAMILY TRUST T/A TILT-A-CRANE

CLAIMANT

-v-

R.D. Containers & Shipping (Universal Moving)

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Wednesday, 8 September 2010

DELIVERED Wednesday, 8 September 2010

CLAIM NO. M 131 OF 2009

CITATION NO. 2010 WAIRC 00938

CatchWords Order made Road Freight Transport Industry Tribunal under the Owner-Drivers (Contracts and Disputes) Act 2007; Order cannot be enforced in the Industrial Magistrates Court; want of jurisdiction

Legislation  Industrial Relations Act 1979

Owner-Drivers (Contracts and Disputes) Act 2007

Result Claim struck out

Representation

Mr A. Dzieciol and Ms M. Papa appeared for the Claimant

The Respondent did not appear.

REASONS FOR DECISION

(Delivered orally and edited by His Honour from the transcript)

1         The Claimant is the Cotter Family Trust trading as Tilt-A-Crane and the Respondent is Mr Ron Dodds trading as R.D. Containers and Shipping.  On 9 November 2009 the Claimant lodged a Claim seeking to enforce an order made against Mr Dodds by the Road Freight Transport Industry Tribunal (the Tribunal) on 8 October 2009.  The Tribunal constituted by Commissioner Wood ordered that Mr Dodds pay an amount of money to the Claimant.  I am advised that this enforcement proceeding has been lodged because of advice received from the Western Australian Industrial Relations Commission.  Based on that advice the Claimant has proceeded with this Claim in the belief that is within this Court’s jurisdiction. The matter has proceeded to the point where the Court is considering an application made by the Claimant for default judgment flowing from the Respondent’s failure to lodge a Response to the Originating Claim.  

2         Mr Dzieciol who has recently been instructed by the Claimant in this matter has informed the Court that he is of the view that the Court does not have jurisdiction to determine the Claim. In that regard he referred me to section 50 of the Owner-Drivers (Contracts and Disputes) Act 2007 (the Act). That provides:

50. Enforcement of monetary order

   (1) In this section —

monetary order means an order of the Tribunal requiring the payment or refund of money (including an order as to costs).

(2) A person to whom a payment or refund is to be made under a monetary order may enforce the order by filing in a court of competent jurisdiction —

(a) a copy of the order that the Registrar has certified to be a true    copy; and

(b) the person’s affidavit as to the amount not paid under the order  and, if the order is to take effect upon any default, as to the making of that default.

(3) No charge is to be made for filing a copy of an order or an affidavit under this section.

(4) On filing, the order is taken to be an order of the court, and may be enforced accordingly.

3         It is submitted that all that is required to enforce the Tribunal’s order is the filing in a Court of competent jurisdiction of the certified copy of the order and an affidavit stating that the amount has not been paid.  On filing, the order is taken to be an order of the Court and the order of the Tribunal can be enforced accordingly.  Accordingly this Claim falls outside the jurisdiction of this Court.  It is without foundation.  It is also superfluous because it seeks to re-litigate an issue which has already been finally determined.  I am invited to dismiss the application.

4         I agree entirely with the submissions made. There is no legislative foundation for bringing this Claim. It is an unnecessary and superfluous process. In order to enforce the Tribunal’s order the order together with an affidavit complying with Section 50(2)(b) of the Act must be filed in a Court of competent jurisdiction which in this case the Magistrate's Court of Western Australia.  Such will then become an order of that Court and that Court’s enforcement processes can be utilised to recover monies ordered to be paid.

5         It follows that the only appropriate order to be made is that this Claim be struck out for want of jurisdiction.

 G Cicchini

     Industrial Magistrate