[Regulation 1 inserted: Gazette 22 Apr 1994 p. 1667.]
2. Interpretation
In these regulations unless the context requires otherwise —
Clerk means the Clerk of the Court appointed pursuant to section 85(7) of the Act;
Commission in Court Session has the same meaning as that expression has in and for the purposes of the Act;
Court means the Western Australian Industrial Appeal Court established under the Act;
Full Bench has the same meaning as that expression has in and for the purposes of the Act;
President means the President appointed under section 9 of the Act;
the Act means the Industrial Relations Act 1979 2;
words and expressions used in these regulations have when so used the same respective meanings as are given to them in and for the purposes of the Act.
Division 2 — Appeals
2A. Time in which section 96K appeals to be instituted
An appeal against a decision of an industrial magistrate’s court under section 96K of the Act shall be instituted within 21 days from the date of the decision against which the appeal is brought.
[Regulation 2A inserted: Gazette 22 Apr 1994 p. 1667.]
3. Notice of appeal
(1) Every appeal to the Court under the provisions of the Act shall be by notice of appeal filed with the Clerk of the Court and served as required by these regulations.
(2) The notice of appeal shall be in accordance with Form 1 and shall specify the grounds upon which the appeal is brought.
(3) As soon as reasonably practicable after filing the notice of appeal, the appellant shall serve a copy thereof on each of the other parties to the decision.
4. Hearing of appeal
The Clerk shall give to each party at least 7 days’ notice (or such less notice as the Court may direct) of the date and place of hearing, the notice to be in accordance with Form 2.
5. Appeal book
At least 21 days prior to the date of the hearing of the appeal, the appellant shall file with the Clerk 3 certified suitably bound copies of an appeal book, each containing —
(a) a copy of the notice of appeal;
(b) a copy of the document instituting the proceedings before the President, Full Bench, Commission in Court Sessions or industrial magistrate’s court;
(c) a copy of the decision the subject of the appeal and the reasons therefor;
(d) a list of the page numbers of the transcript of the proceedings at which reference is made to the subject matter of the appeal; and the pages thereof necessary for the appeal;
(e) an index of the documents contained in the appeal book,
and shall serve one copy on each of the parties to the appeal.
[Regulation 5 amended: Gazette 22 Apr 1994 p. 1667.]
6. Appeal not to operate as a stay of proceedings
An appeal to the Court does not operate as a stay of proceedings on the decision being appealed from unless the Court or a judge of the Court directs otherwise.
[Regulation 6 inserted: Gazette 22 Apr 1994 p. 1668.]
Division 3 — Applications
7. Notice of motion
Applications to the Court, except where some other method or form is prescribed, shall be by notice of motion in Form 3 and be filed with the Clerk.
Division 4 — General provisions
8. Service
Service of any notice or other document under the Act or these Regulations may be effected: —
(1) in the case of an industrial union, in accordance with section 60(3) of the Act;
(2) in the case of a company or other corporation, by leaving it at, or sending it by post in a prepaid registered letter to the registered office of the company or corporation;
(3) In the case of a partnership, firm or unincorporated company or body, by leaving it at, or sending it by post in a prepaid letter to the partnership, firm or unincorporated company or body at the principal place of business thereof in the State;
(4) In the case of any other person by delivering it to him personally, or by leaving it for him at his usual or last known place of abode, or if he is in business, at his usual or last known place of business, or sending it by post in a prepaid letter addressed to him at his usual or last known place of abode, or if he is in business, at his usual or last known place of business: Provided that no place shall be deemed the place of business of any person unless he is a principal in the business.
9. Proof of service
Service may be proved by a statutory declaration made before the Clerk, a Justice of the Peace, or Commissioner for Declarations, in accordance with Form No. 4 and filed with the Clerk.
10. Rules for conduct of proceedings before Court
(1) All applications made to the Court or to any judge of the Court shall be lodged with the Clerk who shall issue all processes out of the Court, keep a register of all proceedings in and orders made by the Court, and affix the seal of the Court to all necessary documents.
(2) Except where otherwise provided by these regulations or where otherwise directed by the Clerk, all documents for the use of the Court shall be lodged in triplicate, but one copy only need be lodged of documents for use before a judge of the Court.
(3) Every matter brought into the Court under the Act or these regulations shall be marked by the Clerk with a distinguishing number, and all documents filed and subsequent proceedings taken in the Court with reference to that matter shall be distinguished by the same number, and the entries in the records kept with regard to that matter shall be entered together and kept separate from the entries with respect to any other matter.
(4) Any act or thing required by the Act or these regulations to be done by the Clerk may be done on his behalf by a Deputy Registrar or the person for the time being performing the duties of the Clerk.
(5) Every notice of appeal to the Court and all subsequent proceedings on the appeal shall be entitled, “In the Western Australian Industrial Appeal Court, on appeal from” (naming the authority from which the appeal is brought), and shall also be entitled as between the party appellant and the party respondent; and every other proceeding in the Court shall be entitled as in Form 5.
(6) Where no form of motion, summons, application, order, notice, or other document or instrument is prescribed, or where no adequate or suitable form is prescribed, the form shall be such as the Clerk, under the direction of the Court, directs or approves.
(7) Where anything is required to be in any of the forms prescribed, it shall be sufficient if it is to the like effect, and any such forms may be modified by the authority of the Clerk to meet any particular case.
[Regulation 10 amended: Gazette 2 Jul 1982 p. 2382.]
11. Documents
(1) Unless the nature of the document renders it impracticable, every document prepared by a party for use in the Court shall, subject to any directions given from time to time by the Clerk, under the direction of the Court, directs or approves —
(a) be legibly and clearly typewritten or printed without blotting, erasure or such alterations as cause material disfigurement;
(b) have a space of not less than 6 millimetres between each line;
(c) be upon white paper of good and durable quality and capable of receiving ink writing and of such size as the Clerk from time to time directs;
(d) be upon one side only of the paper with a quarter margin upon the left hand side of each sheet;
(e) have each page numbered;
(f) have a cover sheet upon which appears the number and a short title of the proceedings, a short description of the document (including, in the case of an affidavit, the name of the deponent and the date of swearing) and the name, address and telephone number of the solicitor (if any) filing, delivering or serving the document or, if the person on whose behalf the document is filed, delivered or served is not represented by a solicitor, the name, address for service and telephone number (if any) of that person.
(2) The Clerk may refuse to file or accept a document to which paragraph (1) applies if it does not comply with the provisions of that paragraph, and the costs of the document may be disallowed.
(3) A typewritten copy of a document to which paragraph (1) applies shall not be filed, registered or marked as an office copy unless it is a first black ink copy.
(4) Any notice, request or consent required or allowed by these Rules may not be given orally except with the leave of the Court.
(5) The Court may require any document required for use in the Court to be printed or otherwise produced in any particular manner that it thinks fit.
12. Affidavits
(1) All affidavits filed with the Clerk shall be drawn up and signed so as to comply with the requirements of Order 37 of the Rules of the Supreme Court 1971.
(2) All affidavits intended to be used on any proceeding shall, before being used, be filed with the Clerk, and any party intending to adduce as evidence an affidavit shall furnish the opposing party or parties with a copy thereof at least 3 days before the date fixed for hearing.
[Regulation 12 amended: Gazette 6 Sep 2002 p. 4489.]
13. Non acceptance of documents
The Clerk may refuse to file or accept an affidavit or document if it does not comply with the provisions of regulations 11 and 12 and the costs of the affidavit or document may be disallowed.
14. Exhibits
No party to any proceeding before the Court or any judge of the Court shall be at liberty to remove any exhibits without first obtaining leave of the Court or the judge, as the case may be.
15. Applications to the Presiding Judge
(1) Applications to the Presiding Judge or any authorised member, except where some other method or form is prescribed, shall be by summons in accordance with Form 6 supported by a statutory declaration of the facts, which shall be filed with the summons.
(2) The summons shall be presented to the Clerk in duplicate, and the said Clerk shall affix the seal of the Court thereto and shall sign a memorandum thereon setting forth the fact and date of such sealing, and shall return one duplicate summons to the person having charge thereof, who shall forthwith cause a copy thereof together with a copy of the declaration in support, to be served upon the other party or parties affected.
16. Orders
All orders issued by the Court or any judge of the Court shall be signed by the Clerk and sealed by him with the seal of the Court, and in each case shall be filed with the Clerk, and any order obtained on an exparte application shall as soon as reasonably practicable be served by the applicant on all other parties thereto.
17. Enforcement of orders
Where an order is made by the Presiding Judge of the Court directing the payment of any fine, sum of money or costs, he may direct that such order shall be enforced by means of a warrant of execution in the manner hereinafter in regulation 18 provided.
18. Execution
(1) Before issuing a warrant of execution or a warrant of commitment the person issuing the warrant may require the person applying for its issue to furnish to him a praecipe in accordance with the form or to the effect of Form 7 in these regulations.
(2) Any fine, cost or fees directed to be levied by execution shall be recoverable by warrant of execution in accordance with Form 8 directed to the sheriff.
(3) The sheriff, under a warrant of execution, may seize and take and cause to be sold any goods (which term shall include cheques, bills of exchange, promissory notes, specialties, or other securities for money) which the person against whom the warrant was issued is or may be possessed of or entitled to or which he has power to assign or dispose of excepting so much of the goods as are protected from seizure under the Local Courts Act 1904.
(4) The sheriff shall hold any cheques, bills of exchange, promissory notes, specialities, or other securities for money which are seized or taken under the warrant of execution, as a security for the amount directed to be levied under the warrant, or so much thereof as has not been otherwise levied or raised for the benefit of the execution creditor, and may receive any moneys payable by virtue of any such instrument from the person liable under it.
The sheriff may sue in the name of the person against whom the warrant of execution was issued, or in the name of any person in whose name the debtor might sue, for the recovery of the sums secured or made payable by any such instrument when the time of payment thereof arrives.
Any money paid to the sheriff or recovered in an action brought by him in respect of any such instrument shall be paid into the Court by him.
(5) A sale of goods which are taken in execution shall not, unless the goods are of a perishable nature, be made until after the expiration of the 5 days at least next following the day on which the goods were taken, except upon the request in writing of the person whose goods are taken.
Until the sale, the goods must be deposited by the sheriff in some fit place or they may remain in the custody of a fit person approved by the sheriff to be put in possession by the sheriff.
(6) The sheriff may deduct out of the amount realised by such sale, the costs incurred in the execution of any warrant of execution and all costs and charges actually incurred in effecting such sale, and shall render to the owner the surplus (if any) after retaining the amount of the sum for which the warrant was issued and the proper costs and charges of the execution of the warrant.
(7) A written account of the costs and charges incurred in respect of the execution of any warrant of execution shall be sent by the sheriff to the Clerk and the person against whom the warrant was issued may, at any time within one month after the levy, inspect such account at any reasonable time and take a copy thereof.
(8) (a) A warrant of execution issued under the Act shall have the same effect against any property (including land under the Transfer of Land Act 1893) as a writ of fieri facias issued out of the Supreme Court.
(b) Section 133 of the Transfer of Land Act 1893 shall apply to a sale under a writ or warrant of execution issued under the Act, and that section and the schedules therein referred to shall, in relation to any such sale, be read as if the words “warrant of execution issued out of the Court” were inserted in place of “writ of fieri facias issued out of the Supreme Court”.
19. Commitment
(1) When the sheriff has returned that he can find no goods or no sufficient goods to satisfy a warrant of execution issued under the preceding regulation, and that the sum to be levied remains wholly or partially unsatisfied, then a warrant may be issued in accordance with Form 9 for the imprisonment of the offender in accordance with the scale set forth in section 167 of the Justices Act 1902.
(2) Where the Court has ordered that a person be committed to prison, then a warrant shall be issued in accordance with Form 10.
(3) The person to whom a warrant is directed shall convey the person therein named or described to the prison or other place mentioned in the warrant and there deliver him, together with the warrant, to the superintendent or keeper of such prison or place, who shall thereupon give the person delivering the prisoner into his custody a receipt for such prisoner in accordance with Form 11 setting forth the state and condition in which such prisoner was when he was delivered into the custody of such superintendent or keeper.
(4) The superintendent of any prison to which any person has been committed under a warrant in accordance with Form 9 shall discharge such person —
(a) on payment to him of the costs or penalty, or such part thereof as remains unpaid;
(b) on receipt of a certificate from the Clerk that the costs or penalty, or the part remaining unpaid, has been paid or realised;
(c) if the costs or penalty or any part thereof remains unpaid or unrealised after he has suffered the period of imprisonment set forth in the warrant of commitment or such portion thereof correspondent with the unpaid part of the fine or penalty.
20. Warrants of execution and commitment
All warrants of execution and commitment shall be prepared by the person seeking to issue same, and shall be presented in duplicate to the Clerk who shall procure the necessary signature, or sign the same, and shall affix the seal of the Court thereto, and issue a duplicate for lodgment with the sheriff, police officer, or other official to whom the same may be directed.
21. Crown not bound by r. 18 to 20
Nothing in the foregoing regulations, numbered 18 to 20 inclusive, shall be deemed to apply to the Crown.
[22. Deleted: Gazette 6 Sep 2002 p. 4489.]
23. Costs
Where the Court or any judge of the Court orders any costs of any proceedings to be paid to a party thereto, there shall be allowed to that party:
(a) the amount of court fees paid by that party;
(b) such further sums in respect of the trouble and loss of time of the party as indicated by the following items —
$
(i) for typing of any document — for each page...............................................
1.50
but a minimum fee of $3.00 is payable;
(ii) for photocopying of any document — per page.................................................
0.20
(iii) service of any document, where personal service is necessary................
3.00
(iv) travelling fee on service of any document where personal service is necessary — for each kilometre (one way only)...............................................
0.30
(v) such further allowances as in the opinion of the Court or any judge of the Court may reasonably be charged.
[Regulation 23 inserted: Gazette 2 Jul 1982 p. 2383.]
24. Seal of Court
(1) There shall be a seal of the Court bearing the Royal Arms with the words, “The Seal of the Western Australian Industrial Appeal Court”.
(2) The seal shall be in the custody of the Clerk and shall be affixed by him to orders, warrants and processes as provided in these regulations, and to such other documents as the Court or any judge of the Court may direct.
25. Where no procedure prescribed
Where no procedure has been prescribed by the Act or under these regulations, any party or person concerned may make application ex parte to any judge of the Court for directions, and such judge may direct the procedure to be followed.
26. Power to waive procedural requirements
(1) The Court may, in relation to any proceeding before it and the Presiding Judge may, in relation to any proceeding before him, in special circumstances, and either absolutely or subject to conditions, exempt any person from compliance with any procedural requirement of these regulations.
(2) Non‑compliance with any of these regulations shall not render void any proceedings before the Court, or the Presiding Judge, but the proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court, or the Presiding Judge, as the case may be, thinks fit.
27. Forms
The forms in the schedule may be modified to meet the special circumstances of any case. Any reference in these regulations to a form shall be read as a reference to a form in the schedule hereto.
28. Vacations
The vacations and holidays of the Court shall be the same as those of the Supreme Court.
Schedule
Form 1
(Reg. 3)
NOTICE OF APPEAL FROM DECISION OF PRESIDENT, FULL BENCH OR COMMISSION IN COURT SESSION OF THE WESTERN AUSTRALIAN INDUSTRIAL COMMISSION OR INDUSTRIAL MAGISTRATE’S COURT
In the Western Australian Industrial Appeal Court.
No. ................................. of 20.............
On Appeal from * .......................................................................................................
Between ............................................................................................
the abovenamed Appellant, hereby appeals against the decision of the President/Full Bench/Commission in Court Session of The Western Australian Industrial Commission/industrial magistrate’s court held at .....................................
..........................numbered No. ...................... of 20.........., dated the ........................
day of ............................................., 20.........., given in the abovementioned matter.
(Here set out whether the appeal is against the whole of the decision, award, or order, or against only part thereof, in the latter case specifying the part or parts appealed against.)
The grounds on which this appeal is made are as follows: —
Name of authority from which the appeal is brought.
This notice of appeal was received in my office on the ............................................ day of .........................................., 20..............
on .............................. the ............................. day of ................................., 20.........., or so soon thereafter as he may be heard, for an order that .......................................
upon ............................................................................................................................
(Name of person or party served)
by ................................................................................................................................
(State method of service — refer Reg 8)
at .................................................................................................................................
(Place of service or in case of service by post address of person or party served)
And I make this solemn declaration by virtue of section 106 of the Evidence Act 1906.
Declared at .............................................<br>in the State of Western Australia, this<br>.................. day of ..................................<br>20..........<br>before me—<br>................................................................<br>Clerk of the Court, J.P., Commissioner for Declarations or other authorised persons.
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.............................................
Filed in my office this ........................ day of ..............................................., 20.......
................................................
Clerk of the Court.
Form 5
(Reg. 10)
Industrial Relations Act 1979
IN THE WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
No. ............................ of 20.........
IN THE MATTER OF (state matter in which the proceedings are taken) ...............
You are hereby summoned to appear before the Presiding Judge of this Honourable Court at ...................................................................................................
on ...................................... the .................... day of .................................... 20.........,
at ................... o’clock in the ...............noon or so soon thereafter as the Presiding Judge may hear this summons upon the application of .............................................
PLEASE ISSUE a Warrant of Execution (or Commitment) against the abovenamed appellant (or respondent) for the sum of $.................. as under, being the amount of Order or part of same made the ........................... day of .................., 20........., before the Western Australian Industrial Appeal Court at .........................
Dated at ................................. this ...................day of .............................. 20.......
WARRANT OF EXECUTION (AGAINST RESPONDENT OR DEFENDANT)
WHEREAS on the ....................... day of ..............................................., 20............,
the (1) ............................. obtained an order (or judgment) in this Court against the (2)..................................... for payment of the sum of $.......... for penalty and costs, and it was thereupon ordered by the Court that the (2) ............................................. should pay the same to the (1) ................................................... forthwith (or on the ........................... day of ..............................., 20............). And whereas default has been made in payment according to the said order (or judgment), these are therefore to require and order you forthwith to make and levy by distress and sale of the goods of the (2) ...................................................... wheresoever they may be found (excepting so much of the goods of the (2) ........................................... as are protected from seizure under the Local Courts Act 1904) the sum stated at the foot of this warrant being the amount due to the (1) ......................................... under the said order (or judgment) including the costs of this execution; and to pay what sum you shall have so levied to the Clerk, and make return of what you have done under this warrant immediately upon the execution thereof.
Dated at .............................. this ................... day of .............................. 20.........
By the Court,
................................................
Clerk of the Court.
$
Amount directed to be paid under order (or judgment)
______________
Paid into Court ..............................................................
Remaining due ..............................................................
Fee for issuing this warrant with Sheriffs’ fee for executing this warrant ............................................
______________
Total amount to be levied $
______________
Note. — The goods are not to be sold until after the end of 5 days next following the day on which they were seized, unless they be of a perishable nature, or at the request of the respondent or defendant.
Application was made to the Clerk of the Court for this warrant ........................
minutes past the hour of ....................... in the ...................noon of the ....................
day of ......................................, 20.................
................................................
Clerk of the Court.
(1) Applicant or complainant.
(2) Respondent or defendant.
Form 9
(Reg. 19)
Industrial Relations Act 1979
IN THE WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
No. ............................ of 20.........
IN THE MATTER OF ...............................................................................................
TO the principal police officer at .......................................................... in the State of Western Australia and to all other police officers in the said State and to the Superintendent of Her Majesty’s Prison at .................................... in the said State.
Whereas .........................................., of ............................................. in the State
of Western Australia was on the ......................... day of ...........................................
20............., convicted before the Court at ..................................................................
for that he did* ...........................................................................................................
and it was adjudged that the said for his said offence should forfeit and pay the sum of $....................., and should pay to the said ..................................................... the sum of $............................ costs.
And whereas a warrant of execution was issued against the said ........................ and the officer entrusted with its execution has returned the warrant with a report that he was unable to find sufficient goods and chattels of the said ......................... whereon to pay the sum therein mentioned which said sums (or $........................... being portion thereof) still remain due and owing.
These are therefore to command you the said Police Officers to apprehend the said ......................................................................... and convey him to the Prison at ...................................................... aforesaid, and deliver him to the Superintendent thereof together with this warrant, and you the said Superintendent of the said Prison are hereby commanded to receive the said ........................................ into your custody in the said Prison there to imprison him (and keep him to hard labour) for the term of ................................................ unless the said several sums and the costs and charges of conveying him to the said Prison amounting to the further sum of $.................... are sooner paid.
Provided that if the said ......................................................................... shall pay any portion of the total amount (namely, $......................) payable under this warrant, then the period of imprisonment shall be thereby reduced by a period which shall bear the same ratio to the period of imprisonment as the portion paid bears to the total payable, and the prisoner is to be released on the expiry of the reduced period, and in calculating any such reduction fractional parts of days are to be disregarded.
Dated at ................................ this ................... day of............................. 20........
By the Court,
(Seal)
................................................
Presiding Judge.
The total amount payable under this warrant is $.................. made up as follows: —
$
Amount ordered to be paid ...........................................
Since paid ......................................................................
______________
Remaining due ..............................................................
Costs and charges this warrant .....................................
______________
Total .....
$<br>______________
State offence for which convicted
Form 10
(Reg. 19)
Industrial Relations Act 1979
IN THE WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
No. ............................ of 20.........
IN THE MATTER OF ...............................................................................................
To all police officers in the State of Western Australia, and to the Superintendent of Her Majesty’s Prison at ............................................................., in the said State.
Whereas .......................................................................... of ................................. ..................................................................................................................................... in the said State was on the .......................................... day of ................................., 20........, convicted before the Court for that he did *.................................................
and it was adjudged by the Court that the said........................................................... ......................................................................................... for his said offence should be imprisoned for the term of.................................................................. . These are therefore to command you the said police officers to apprehend the said ................
......................................................... and convey him to the Prison at ....................... aforesaid and deliver him to the Superintendent thereof together with this Warrant, and you the said Superintendent of the said Prison are hereby commanded to receive the said .................................................................. into your custody in the said Prison there to imprison him for the term of ..............................
Dated at ................................. this .................. day of ............................. 20........
*State offence.
By the Court,
................................................
Presiding Judge.
(Seal)
Form 11
(Reg. 19)
Industrial Relations Act 1979
IN THE WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
No. ............................ of 20.........
Addressto theClerk ofthe Court.
To
IN THE MATTER OF ...............................................................................................
I hereby certify that I have this day received from .............................................. police officer of .......................................................................................................... in the State of Western Australia, the body of ........................................................... in good health (or as the case may be) ....................................................................... together with a warrant of commitment directing the imprisonment of the said ........................................................................................................... issued out of the Western Australian Industrial Appeal Court of the said State.
Dated at ..................... this ................... day of ...................................... 20..........
[Schedule amended: Gazette 2 Jul 1982 p. 2383; 22 Apr 1994 p. 1668.]
Notes
1 This is a compilation of the Industrial Relations (Western Australian Industrial Appeal Court) Regulations 1980 and includes the amendments made by the other written laws referred to in the following table.
Industrial Relations (Western Australian Industrial Appeal Court) Amendment Regulations 1994
22 Apr 1994 p. 1667‑8
22 Apr 1994
Reprint of the Industrial Relations (Western Australian Industrial Appeal Court) Regulations 1980 as at 15 Mar 2002 (includes amendments listed above)
Industrial Relations (Western Australian Industrial Appeal Court) Amendment Regulations 2002
6 Sep 2002 p. 4489
6 Sep 2002
2 Formerly referred to the Industrial Arbitration Act 1979 the short title of which was changed to the Industrial Relations Act 1979 by the Acts Amendment and Repeal (Industrial Relations) Act (No. 2) 1984 s. 4. The reference was changed under the Reprints Act 1984 s. 7(3)(gb).
3 Now known as the Industrial Relations (Western Australian Industrial Appeal Court) Regulations 1980; citation changed (see note under r. 1).
Defined terms
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]