FEDERAL COURT OF AUSTRALIA

Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2017] FCA 33

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The order of the Industrial Relations Court of South Australia (IRCSA) made 10 August 2016 in file number 4674 of 2005 dismissing the application to reopen filed on 29 February 2016 is set aside.

3.    The matter is remitted to the IRCSA for further consideration of the application filed 29 February 2016.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J

1    This decision concerns yet another step in the appellant’s attempts to pursue a claim against the respondent (CMI) for unpaid superannuation contributions said to total less than $6,000. Those attempts will not end with this judgment.

2    The appellant commenced with an application to the Industrial Relations Court of South Australia (the IRCSA) in 2005: Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2006] SAIRC 31. This was followed by an unsuccessful appeal to a single Judge in the IRCSA and again to this Court: Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota) [2008] FCAFC 171. The appellant was refused special leave to appeal to the High Court against the Full Court’s decision.

3    Meanwhile, in 2009 the appellant applied to the Federal Magistrates Court (the FMC) for an interpretation of the provisions in The Vehicle Industry – Repair, Services and Retail – Award 1983 (the Award). This was an Award made under the Conciliation and Arbitration Act 1904 (Cth) and was the Award on which the appellant relied for his claim to the superannuation contributions. The appellant’s claim in the FMC was unsuccessful: Kronen v Commercial Motor Industries Pty Ltd (trading as CMI Toyota) [2009] FMCA 808.

4    The appellant also sought to have the Commissioner of Taxation take steps on his behalf to pursue the payment of the superannuation contributions. On those steps being unsuccessful, the appellant brought an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) against the Commissioner. The Commissioner obtained an order for the summary dismissal of that action: Kronen v Commissioner of Taxation [2012] FCA 1463. An application for leave to appeal against that decision was refused on 10 May 2013: Kronen v Commissioner of Taxation [2013] FCA 416.

5    The appellant then took a new tack. He filed an interlocutory application (an application for directions) in the IRCSA seeking the re-opening of his original 2005 claim. That application followed a tortuous route after a direction of an Industrial Magistrate, including appeals to a single judge and to the Full Court in the IRCSA, and then a further appeal to the Full Court of the Supreme Court of South Australia. That Court held that the direction of the Industrial Magistrate was a judgment which could be the subject of appeal but confirmed that the appellant’s right of appeal lay to this Court: Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2016] SASCFC 8. The appellant then filed a fresh application to reopen the 2005 proceedings (in the same terms as his 2013 application) which was refused by an Industrial Magistrate in the IRCSA: Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2016] SAIRC 23.

6    On 24 August 2016, the appellant filed in this Court an application for leave to appeal against that decision of the Industrial Magistrate. He sought leave to appeal on the basis that the decision of the Magistrate was an interlocutory decision in respect of which an appeal lies to this Court only with leave: Federal Court of Australia Act 1976 (Cth) s 24(1A). However, cl 24 of Sch 17 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) applies to the appellant’s appeal. That means that leave to appeal is not required. For this and other reasons, the Court ordered that the application for leave be heard as though it was the appeal.

7    I consider that the appeal must be allowed. The decision of the Industrial Magistrate refusing the application to reopen is affected by error and the matter should be remitted to the IRCSA for reconsideration. In order to explain why that is so, it is necessary to first traverse some of the history.

Background

8    The appellant was employed by CMI from 14 April 1998 to 3 November 2000 initially as a retail new car consultant and then as a business manager. The Award applied to his employment.

9    On 11 July 2005, the appellant commenced proceedings in the IRCSA against CMI. He claimed the sum of $65,000, asserting that it was payable under the Award. His application continued:

The grounds upon which the said sum is claimed are:

Underpayment of superannuation contributions

Failure to make contributions on a portion of ordinary time earnings (or the appropriate earnings base), namely commission earnings, over the period from 14/4/1998 to 3/11/2000.

Underpayment of wages

Failure to make correct and proper payment for overtime (approx. 25 hrs/week) over the period from 14/4/1998 to 3/11/2000.

The sum claimed is computed as follows:

Underpayment of superannuation contributions approx. $6,000.

Underpayment of wages – approx. $59,000.

Both to be calculated more accurately following discovery of documents.

10    In short, the appellant sought the payment of approximately $59,000 in respect of unpaid overtime and $6,000 in unpaid superannuation contributions. Significantly, the appellant did not seek any order for the payment by CMI of a civil penalty in respect of the alleged contraventions by CMI of the Award.

11    The cause of action on which the appellant sued was that granted by the former s 179(1) of the Workplace Relations Act 1996 (Cth) (the WR Act). Section 179(1) provided:

Where an employer is required by an award, order or certified agreement to pay an amount to an employee, the employee may, not later than 6 years after the employer was required to make the payment to the employee under the award, order or agreement, sue for the amount of the payment in the Court or in any court of competent jurisdiction.

12    As can be seen, s 179(1) allowed an employee to sue his or her employer in this Court or “in any court of competent jurisdiction” for any amount required to be paid by the employer under (relevantly) an Award, but imposed a six year limitation period. However, s 179(1) was confined to amounts to be paid “to an employee” and did not extend to amounts to be paid on behalf of an employee, such as superannuation contributions.

13    The IRCSA is a Court of competent jurisdiction for the purposes of s 179(1) – see s 177A of the WR Act.

14    The six year limitation period fixed by s 179(1) meant that, even if successful, the appellant could not recover any underpayment by CMI occurring before 11 July 1999.

15    I add that the appellant disputes that the jurisdiction he invoked in 2005 was that for which s 179 provides or, at least, that the claim was made only pursuant to s 179. However, that contention is not now open to him as the issue is foreclosed by the decision of the Full Court of this Court in 2008: [2008] FCAFC 171. The Court held then, at [3], that the jurisdiction being exercised by the IRCSA was that conferred by s 179(1). The balance of the Court’s reasons was premised on s 179 having been the source of the IRCSA’s jurisdiction. Accordingly, the present appeal is to be determined on the basis that the appellant’s 2005 claim was a s 179 claim.

16    In the 2006 decision, the Industrial Magistrate dismissed the appellant’s claim for overtime altogether, finding that it was “custom and practice” in CMI’s industry that business managers were not paid overtime. The Magistrate seemed to accept that he did not have jurisdiction to determine the superannuation claim but considered that this did not preclude him from interpreting the Award for the purposes of determining the gross sum to be used in calculating superannuation contributions to be paid on behalf of the appellant. However, the only order which the Industrial Magistrate made concerned the claim for overtime payments, which he dismissed. No order at all was made on the claim for superannuation payments.

17    A number of propositions of present relevance arise from the decision of the Full Court of the Federal Court on 8 October 2008 by which the appellant’s appeal against the decision of the Magistrate was dismissed:

(a)    although s 179 had been repealed and replaced by s 720 of the WR Act in the period between the Industrial Magistrate reserving his decision on 17 February 2006 and delivering judgment on 12 May 2006, the effect of s 8 of the Acts Interpretation Act 1901 (Cth) was that s 179 continued to apply to the appellant’s proceedings in the IRCSA, at [5];

(b)    by ss 850(2) and 853(1) of the WR Act, the jurisdiction of this Court to hear an appeal from a judgment of a State Court in a matter arising under the WR Act was exclusive of the jurisdiction of the courts of a State, at [7];

(c)    the Industrial Magistrate had been in error in concluding that the IRCSA had jurisdiction to interpret the Award, other than in circumstances in which the interpretation was necessary in order to determine a claim otherwise properly before it, at [12]-[13];

(d)    the IRCSA did not have jurisdiction to deal with the appellant’s claim for payment of superannuation contributions on the application then before it and, that being so, the Industrial Magistrate should have dismissed the appellant’s claims concerning superannuation, at [12], [14];

(e)    the basis upon which the Industrial Magistrate had dismissed the overtime claim was in error, but on the proper construction of the Award and the assessment of the evidence, the claim for overtime payments failed in any event, at [33].

18    The order made by the Full Court was to dismiss the appeal.

19    By his application for directions filed in the IRCSA on 9 September 2013 and renewed on 29 February 2016, the appellant sought the following orders:

The re-opening and reconsideration of various questions relating to that part of the original application that embodied the “superannuation” claim … .

20    In an attachment, the appellant identified the question which he sought to be “re-opened for reconsideration” as including:

(a)    whether the IRCSA has “the capacity to entertain my claim subject to ss 177A and 178 of the [WR Act]”;

(b)    the quantum of any entitlements under subss (6A), (6B) and (7) of s 178;

(c)    the conduct of CMI and its agents in relation to compliance with the terms of the Award concerning the superannuation entitlements of employees.

21    The appellant stated the grounds upon which he made the application for reopening in diverse ways, raising the following matters:

(a)    the finding by the Full Court of this Court of errors in the Industrial Magistrate’s decision in 2006. He contended, in particular, that the Full Court had found that his “superannuation claim remained without any formal declaration, decision or order for dismissal – thereby remained active and unresolved”;

(b)    the incorrect view of the Industrial Magistrate in 2006 that the jurisdiction he was exercising in relation to the appellant’s superannuation claim was that conferred by the Fair Work Act 1994 (SA) (the FW Act (SA)), whereas the jurisdiction had been conferred by the WR Act;

(c)    the IRCSA had, erroneously, considered his claim as though made only under s 179 of the FW Act and the Full Bench of this Court had considered the claim “only through the narrow perspective of s 179 of the WR Act” with the consequence that there had been no consideration of “the IRCSA’s capacity to entertain the superannuation claim subject to s 177A and s 178 of the WR Act”;

(d)    conduct of CMI, including conduct which the appellant alleged had misled him and the IRCSA in respect of questions of law.

22    As can be seen, the appellant wishes now to invoke the jurisdiction conferred by s 178 of the WR Act. That section provided a possible additional or alternative cause of action to the appellant, namely, to seek the imposition of a penalty on CMI in respect of the breach or breaches of the Award which he alleged. Significantly for present purposes, in actions under s 178, a court is empowered to make orders for unpaid superannuation contributions. Section 178 provided (relevantly):

178  Imposition and recovery of penalties

(1)    Where an organisation or person bound by an award, an order of the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise) or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or by a court of competent jurisdiction.

…

(4)    The maximum penalty that may be imposed under subsection (1) for a breach of a term of an award, order or agreement is:

(a)    where the penalty is imposed by the Court:

…

(b)    where the penalty is not imposed by the Court—300 penalty units for a body corporate or 60 penalty units in other cases.

…

(5)    A penalty for a breach of a term of an award or order may be sued for and recovered by:

…

(ca)    a person:

(i)    whose employment is, or at the time of the breach was, subject to the award; and

(ii)     who is affected by the breach;

…

…

(6)    Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount that the employer was required to pay under an award, order or agreement, the court may order the employer to pay to the employee the amount of the underpayment.

(6A)    Where, in a proceeding against an employer under this section, it appears to the court concerned that the employer has not paid an amount to a superannuation fund that the employer was required, under an award, order or agreement, to pay on behalf of a person, the court may order the employer to make a payment to or in respect of that person for the purpose of restoring the person, as far as practicable, to the position that the person would have been in had the employer not failed to pay the amount to the superannuation fund.

(6B)    Without limiting the generality of subsection (6A), the court concerned may order that the employer pay to the superannuation fund referred to in subsection (6A), or another superannuation fund, an amount equal to the amount (in this subsection called the unpaid amount) that the employer failed to pay together with such additional amount as, in the opinion of the court, represents the return that would have accrued in respect of the unpaid amount had it been duly paid by the employer.

(7)    An order shall not be made under subsection (6) or (6A) in relation to so much of an underpayment as relates to any period more than 6 years before the commencement of the proceeding.

(8)    A proceeding under this section in relation to a breach of a term of an award, order or agreement shall be commenced not later than 6 years after the commission of the breach.

…

23    As can be seen, subs (6A) empowers a court hearing a claim under s 178 for the imposition of a penalty, to make an order for the payment of unpaid superannuation contributions. However, the Court’s power in that respect arises only in the proceeding “under this section”. Section 179 did not, at the material time, contain any counterpart.

24    Despite the appellant’s submissions on the present appeal, it is plain that the application filed on 11 July 2005 did not invoke the jurisdiction of the IRCSA under s 178. That application did not refer to a claim for the imposition of a penalty and cannot, on any reasonable view, be construed as including a claim on a cause of action granted by s 178. Accordingly, it was not a “proceeding … under [that] section”. As already noted, the Full Court of this Court found as much as it said, at [3]:

In the absence of any claim for the imposition of a penalty for a contravention of any term of the Award, the jurisdiction that the IRCSA was exercising was that conferred by s 179(1) of the WR Act … .

The power to reopen in the IRCSA

25    The power of the IRCSA to reopen a question which the appellant was seeking to have exercised in his favour is that conferred by s 174 of the FW Act (SA):

The Court or the Commission may re-open a question previously decided and amend or quash an earlier determination.

26    Section 174 vests a discretionary power in the IRCSA which is not subject to any statutory conditions. The power is to be exercised to serve the interests of justice and, accordingly, should not be construed narrowly. That is especially so given that s 174 relates to proceedings in both the IRCSA and in the Industrial Relations Commission of South Australia.

27    Nevertheless, s 174 should be understood, at least in relation to the IRCSA, as intended to operate in the context of some broader well established principles. First, there is the public interest, and the interests of the parties to particular litigation, in the finality of litigation. Secondly, there is the principle which underpins the Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) which operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of an earlier proceeding as to have made it unreasonable for the proposed new claim not to have been made or the issue not to have been raised in that proceeding: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 at [22]. Thirdly, there is the public interest in courts not hearing and determining claims which are stale, reflected in Limitation of Actions legislation.

28    When s 174 is understood as operating in the context of these principles, it is to be expected that a party seeking to reopen a question previously determined in proceedings in the IRCSA will have to establish good reason for that course to be allowed. That is consistent with the approach taken by courts more generally in relation to the reopening of judgments or orders. In De L v Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207, the plurality (Toohey, Gaudron, McHugh, Gummow and Kirby JJ) said at 215:

The Court may [reopen its judgments or orders] if it is convinced that, in its earlier consideration of the point, it has proceeded “on a misapprehension as to the facts or the law”, where “there is some matter calling for review” or where “the interests of justice so require”. It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required “without fault on his part”, ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice.

(Citations omitted)

29    In Ashby v Slipper (No 2) [2014] FCAFC 67; (2014) 314 ALR 84, the Full Court of this Court said, at [13]-[15]:

[13]    The exercise of the discretion to vary or set aside orders … is a power to be used only sparingly, with great caution and rarely, having regard to the public interest in the finality of litigation … .

[14]    The discretion is exercised to cure injustice, particularly where it would otherwise be irremediable … .

[15]    As Kenny J stated in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24]: “[i]n every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open” … .

(Citations omitted)

30    Two factors may suggest that these principles should not be applied with the same rigor in the context of s 174 of the FW Act (SA). The first is that s 174 applies to proceedings in the Industrial Commission as well as to proceedings in the IRCSA. That may be an indication that the power to reopen may be exercised more flexibly than is the case in the higher courts of record.

31    The second factor is the stipulation in s 154 of the FW Act (SA) that the IRCSA is, in the exercise of its jurisdiction, governed by “equity” and “good conscience”. Section 154 provides:

154 – General principles affecting exercise of jurisdiction

(1)    In exercising its jurisdiction, the Court or the Commission—

(a)    is governed in matters of procedure and substance by equity, good conscience, and the substantial merits of the case, without regard to technicalities, legal forms or the practice of courts; and

(b)    is not bound by evidentiary rules and practices but may, subject to subsection (2), inform itself as it thinks appropriate.

(2)    The Court and the Commission must observe the rules of natural justice.

32    The circumstances which may make it appropriate to reopen a previous judgment should not be circumscribed in advance. They may include situations in which the original order was made without jurisdiction, by mistake or in which there is some other vitiating circumstance. In practice, the circumstances in which good reason to reopen may be established are likely to be rare.

33    This understanding of s 174 informs the exercise of power which the Industrial Magistrate was asked to undertake.

The decision of the Industrial Magistrate

34    In refusing the application to reopen, the Industrial Magistrate noted, correctly, that it was clear that the appellant had not sought by his 2005 proceedings to have the IRCSA exercise the jurisdiction conferred by s 178 of the WR Act. His Honour then adopted passages in the reasons of Judge Hannon in his 2013 judgment on the appeal from the Magistrate’s direction, namely:

[44]    It was open to the appellant in 2005 to issue proceedings under s 178 seeking the imposition of a penalty for a breach of the award, whether separately from or in conjunction with the s 179 proceedings, and to request the Court to exercise its powers under subss (6A) and (6B) to make an order that the employer make a payment to a superannuation fund. However, he did not do so. He is now statute barred in that respect, and he is not entitled to have the s 179 proceedings re-opened in order to attach to them a new proceeding under s 178 which is out of time.

…

[50]    [T]he appellant’s attempt to pursue his superannuation claim by seeking to revive the s 179 proceedings and attach to them a new proceeding under s 178 is so plainly bound to fail that it is an abuse of process …

35    The Magistrate noted again the finding of the Full Court of this Court that the IRCSA lacked jurisdiction to deal with the appellant’s superannuation claim and concluded as follows:

[11]    The applicant is not able to reopen his proceedings issued under s 179 of the WR Act and attach to those proceedings a new proceeding under s 178 which is out of time.

[12]    The applicant is statute barred. The application must be dismissed.

36    In short, the Magistrate dismissed the application to reopen on the basis that any claim by the appellant for payment of the superannuation contributions was now “statute barred” and so could not be “attached” to the appellant’s s 179 claim. This was, in effect, a finding that the proposed reopening would lack utility.

37    The Magistrate was correct to find that, as the originating summons stands presently, the IRCSA does not have jurisdiction to hear and determine the appellant’s claim for superannuation contributions. This issue had been determined, adversely to the appellant, by the Full Court of this Court. It was not open to the Industrial Magistrate to take any other view.

Consideration

38    As previously noted, the power granted by s 174 to reopen a question is discretionary. Any appeal against the exercise of that power engages the principles concerning appellate review of discretionary decisions identified in House v The King (1936) 55 CLR 499 at 504-5. It is not enough for this Court to consider that, if it had been in the position of the Industrial Magistrate, it may have decided the matter differently. Instead, the appellant must establish some error in the exercise of the discretion by showing that the Industrial Magistrate acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, was mistaken as to the facts, or did not take into account some material consideration. If the appellant cannot show an error of that kind, he may still have this Court intervene if he can show that the decision of the Industrial Magistrate was so unreasonable or plainly unjust that it must have been affected by some error.

39    It has to be said that the Magistrate’s reasons were brief and did not deal with a number of matters arising on the application to reopen. In particular, the Magistrate did not advert at all, to the oral application which the appellant had made during the hearing on 29 April 2016 for leave to amend his originating application, so as to include an explicit application for the imposition of a penalty. Perhaps the Magistrate took the view that, unless and until reopening was allowed, the occasion to consider amendment of the 2005 application did not arise. However, the possibility of an amendment being allowed was something which had to be considered before it could be concluded that any reopening would lack utility. Counsel for the respondent acknowledged, quite fairly, that that was so.

40    Had the Industrial Magistrate adverted to the application to amend, he would have had to have addressed the application of the rule in Weldon v Neal (1887) 19 QBD 394 before concluding that the appellant’s claim was statute barred. That rule prevents plaintiffs being allowed to amend their proceedings to raise fresh claims in respect of causes of action which, since the commencement of the proceedings, have become barred by the statute of limitations.

41    If the rule in Weldon v Neal applied to the appellant’s claim, then the Industrial Magistrate was correct in finding that his claim was (irretrievably) statute barred. However, if it did not apply, the question of whether the claim was statute barred depended on whether an amendment to the appellant’s proceedings could be allowed with retrospective effect.

42    The two issues are inter-related. Under the common law, an amendment operates from the date on which the document being amended was filed in the Court: Agtrack (NT) Pty Ltd v Hatfield [2003] VSCA 6, (2003-04) 7 VR 63 at [37]-[40]; Air Link Pty Ltd v Paterson (No 2) [2003] NSWCA 251, (2003) 58 NSWLR 388 at [46]-[47]. In the former case, Ormiston JA, in the judgment of the Court, said at [41] that “the question of relation back is not a matter of high principle, but one of practice, depending on a practical analysis of what is sought to be achieved”. This means that the operative date for an amendment is in the discretion of the court allowing it. A court may, for example, order that an amendment take effect from the day on which the proceedings were filed, the day on which the opposing party was given notice of the proposed amendment, the day on which the application to amend was filed in the court, or the day on which the amendment is allowed.

43    The exercise of the discretion is informed by the “rule” in Weldon v Neal. This too is described as a rule of practice: see Weldon v Neal at 395 (Lord Esher MR); Agtrack at [29]; and Air Link at [54]-[57]. Thus, in Air Link, Mason P said at [56]:

[T]his analysis of the Weldon v Neal rule shows that it was always viewed as a “rule of practice” that informed and controlled the general power to permit amendment to pleadings having retrospective effect under the relation back principle. Weldon v Neal was quintessentially a matter of practice and procedure as to the exercise of the power to permit amendments under rules of court conferred in general terms. By characterising the rule as one of “practice”, the Court in Weldon was taking pains not to deny the power to permit an amendment to relate back even though the amended cause of action was otherwise statute-barred … .

44    The “rule” in Weldon v Neal can be abrogated by statute or by court rule. Rule 54(7) of the Supreme Court Civil Rules 2006 (SA) (the SCC Rules) provides an example:

(7)    The Court’s power to grant permission for an amendment under subrule (6) is subject to the following qualifications –

(a)    the Court may only grant permission for the additional substitution of a cause of action that is statute barred if the new cause of action arises out of substantially the same facts as the original cause of action;

45    That means that attention must be given to the power to amend vested in the IRCSA. There are two relevant sources of power. Section 166 of the FW Act 1994 (SA) provides:

166 – Amendment or rectification of proceedings

(1)    The Court or Commission may—

(a)    allow the amendment of an application, notice, submission, report or other document associated with proceedings; or

(b)    correct an error, defect or irregularity (even though the error, defect or irregularity may be such as to render the proceedings void).

(2)    If the Court or Commission exercises its power to correct an error, defect of irregularity under subsection (1)(b), the proceedings are as valid and effective as if the error, defect or irregularity had never happened.

46    As can be seen, s 166 bestows on the IRCSA a power to allow an amendment and a power to correct an error, defect or irregularity. Subsection (2) provides that when the IRCSA exercises the latter power, the proceedings are as valid and effective as if the error, defect or irregularity had never happened. That is to say, subs (2) seems to incorporate a form of statutory relating back.

47    I interpolate that the appellant contended that his omission in 2005 to include a claim pursuant to s 178 constituted an error, defect or irregularity of the kind to which s 166(1)(b) refers. I do not accept that submission. Section 166(1)(b) seems more directed to the circumstances in which the so called “slip” rule applies. It is possible that it has a more extensive operation than that but it cannot reasonably be understood as extending to the circumstance in which an applicant chooses to pursue one form of claim but not another. Further, and in any event, the error, defect or irregularity to which s 166(1)(b) refers must be an error of the kind which existed at the time the document was filed or made. The appellant has not adduced any evidence that he had made an error at the relevant time, that is, by intending to do one thing but doing another.

48    Rule 30 of the Industrial Proceedings Rules 2010 (SA) (the IP Rules 2010) provides an alternative power in the IRCSA to amend. It provides:

(1)    The Tribunal may at any stage of a proceeding –

(a)    order the amendment of any document; or

(b)    itself amend a document.

…

(3)    An amendment, or an order for amendment, may be made on conditions the Tribunal considers appropriate.

49    As can be seen, r 30 contains a power which may be exercised at “any stage of a proceeding”. It is not necessary for present purposes to consider the reach of that term.

50    Neither s 166 nor r 30 contains any express abrogation of the rule in Weldon v Neal. However, there are two considerations which warrant the conclusion that the IRCSA is not bound by that rule. The first is s 154 of the FW Act (SA) to which reference was made earlier. As then noted, the IRCSA is “governed” in both matters of procedure and substance by equity, good conscience and the substantial merits of the case without regard, amongst other things, to “the practice of the courts”. This suggests that the IRCSA is not bound by the Weldon v Neal rule of practice. Secondly, and in any event, r 4(3) of the IP Rules 2010 provides:

In any circumstances not provided for or fully provided for by these rules, the general principles of the practice of the Supreme Court and the rules of that Court in its civil jurisdiction, may be adopted and applied at the discretion of the Tribunal with such modifications as the circumstances may require.

51    In my opinion, r 4(3) attracts the operation of r 54(7) of the SCC Rules. That is because the IP Rules 2010 do not provide, or at least provide fully, for the circumstance in which an applicant wishes to amend an existing proceeding so as to add a cause of action which is otherwise statute barred. Rule 4(3) operates to fill that lacuna by vesting in the IRCSA a discretion to adopt and apply the relevant SCC Rule.

52    In these circumstances, the appellant’s proposed claim pursuant to s 178 could be regarded as irretrievably statute barred, only if there was no prospect of the power to amend his 2005 proceedings being exercised so as to allow the amendment to operate with retrospective effect. A number of matters bear on the existence of that prospect, whether under s 166 of the IRCSA or under r 30. Several of these matters have been identified in the reasons above. The Industrial Magistrate did not consider these matters. As already indicated, the Magistrate assumed, without further consideration, that the appellant’s proposed claim pursuant to s 178 was irretrievably statute barred. This was an error of the House v The King kind as the Magistrate did not consider a relevant matter.

53    It may well be that the appellant will have difficulty in obtaining a favourable exercise of the discretion to amend with retrospective effect and, accordingly, to his application to reopen being allowed. However, these are not matters for this Court to decide on an appeal of the present kind. They are instead for the IRCSA.

54    I am satisfied that the appeal should be allowed and the matter remitted to the IRCSA so that the appellant’s application to reopen the 2005 proceedings can be heard and determined in accordance with the law. That will require the IRCSA to consider the appellant’s oral application to amend.

Summary

55    For the reasons given above, the appellant has shown that the Industrial Magistrate erred in his consideration and determination of the application to reopen. The appeal should be allowed. The proper place for the consideration of the discretion is the IRCSA. Accordingly, the orders of the Court are:

(1)    The appeal is allowed.

(2)    The order of the IRCSA dismissing the application to reopen filed on 29 February 2016 is set aside.

(3)    The matter is remitted to the IRCSA for further consideration of that application.

Associate:

Dated:    30 January 2017