WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2024 WAIRC 00283 CORAM : COMMISSIONER T B WALKINGTON HEARD : THURSDAY, 11 APRIL 2024 DELIVERED : FRIDAY, 7 JUNE 2024 FILE NO. : APPL 1 OF 2024 BETWEEN : MINISTER FOR CORRECTIVE SERVICES Applicant AND WESTERN AUSTRALIAN PRISON OFFICERS' UNION OF WORKERS Respondent CatchWords : Application for Interpretation of Agreement – s. 46 – Application to dismiss application because of abuse of process and not in the public interest – Claim for enforcement – Effect of s. 46(3) Legislation : Industrial Relations Act 1979 (WA) Result : Application to Dismiss Application Refused Representation: Applicant : Mr D Anderson (of counsel) Respondent : Mr D Stojanoski (of counsel) Case(s) referred to in reasons: Bernard Chipadza v Freo Group Pty Ltd [2020] WAIRC 00273 Civil Service Association of Western Australia Incorporated v Director General, Department of Justice [2002] WAIRC 06496 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43 Mineralogy Pty Ltd and Clive Frederick Palmer v Sino Iron Pty Ltd, Korean Steel Pty Ltd, Citic Ltd and Sinor Iron Holdings Pty Ltd [2020] WASC 40 The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830 Western Australian Prison Officers’ Union v Minister for Corrective Services [2024] WAIRC 00152 Reasons for Decision 1. The Minister for Corrective Services (Minister) has applied under s 46 of the Industrial Relations Act 1979 (WA) (the IR Act) for an interpretation of cl 28 of the Department of Justice Prison Officers’ Industrial Agreement 2022 (2022 Industrial Agreement). 2. The only other party to the Agreement, the Western Australian Prison Officers’ Union (the Union), seeks an order pursuant to ss 27(1)(a)(ii) and (iv) of the IR Act to dismiss this application because they say the processes of the state industrial relations system are not being fairly used but are being employed in an improper way. The Union says that the effect of APPL 1 of 2024 is to either (or all) fetter, stay, permanently stay, nullify or usurp the proceedings they previously filed in M 153 of 2023. 3. Both parties are the same parties in each application. The Union asserts the Minister’s application, APPL 1 of 2024, amounts to an abuse of process. 4. I need to decide whether to dismiss the Minister’s application for an interpretation because it is neither necessary nor in the public interest. Background 5. On 22 December 2023, the Union filed a claim in the Industrial Magistrates Court of Western Australia (M 153 of 2023) for the enforcement of cl 23 of the Department of Justice Prison Officers’ Industrial Agreement 2020 (the 2020 Agreement) and is headed ‘Minimum Time off Duty when Overtime is Worked’. 6. The Union claims that the Minister contravened cl 23 of the 2020 Agreement on five occasions and seeks orders for the Minister to pay a penalty to the Union and orders preventing further contravention or failure to comply with cl 23.1. 644 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 104 W.A.I.G. 7. On 21 March 2024, by order of the Industrial Magistrate, leave was granted for the parties in APPL 1 of 2024 to refer to and rely on documents filed in M 153 of 2023 for the purposes of the dismissal application proceedings in APPL 1 of 2024. 8. It appears the Union’s claim in M 153 of 2023 was served on the Minister on 9 January 2024, albeit the Form 4 stating that service was effected, and names the claimant as ‘Western Australian Police Officer’s Union of Workers’. (my emphasis). 9. On 18 January 2024, the Minister applied pursuant to s 46 of the IR Act for an interpretation of the Agreement. The Minister seeks an answer to the question of whether cl 28 of the 2022 Industrial Agreement, read in its entirety, requires the Minister to provide Officers a 12 hour break when they have worked Overtime following a 12-hour shift. Clause 28 of the Agreement provides: 28. Minimum Time off Duty when Overtime is Worked 28.1 Subject to subclause 28.2, an Officer required to work a 12-hour shift shall be entitled to 12 hours off duty between successive shifts. 28.2 In an extreme emergency, an Officer who works a 12-hour shift may be required to perform 2 hours Overtime, requiring at least 10 hours off duty before returning to work. 28.3 All other Officers required to perform Overtime shall be entitled to have at least ten hours off duty between the hours of successive rostered shifts. 28.4 (a) An Officer who has not had at least 10 hours off duty before their next rostered shift is due to commence shall, without loss of pay for ordinary hours of work for which they are absent, not be required to commence the shift until the Officer has had 10 hours off duty. (b) If the Officer resumes or continues work on the instruction of the Employer without 10 successive hours off duty, the Officer shall be granted time off in lieu for the hours worked until the Officer has had 10 consecutive hours off duty without loss of pay for ordinary hours of work for which they are absent. 28.5 Subclauses 28.2 and 28.4 are to be read in conjunction with the Department’s Fatigue Management Guidelines, as amended from time to time. 10. Clause 23 of the 2020 Agreement and cl 28 of the 2022 Agreement are both headed ‘Minimum Time off Duty when Overtime is Worked’. The text and language of cl 23 of the 2020 Agreement and cl 28 of the 2022 Agreement are identical. 11. On 1 February 2024, the Minister responded to the claim in M 153 of 2023, wholly denying the claim and opposing the Industrial Magistrate granting the orders sought. 12. On 20 February 2024, the Union filed an application pursuant to s 27(1)(a) of the IR Act, seeking orders to wholly dismiss APPL 1 of 2024 on the grounds that APPL 1 of 2024 is either (or both): a) not necessary or desirable in the public interest: s 27(1)(a)(ii) IR Act; and or b) an abuse of process pursuant to s 27(1)(a)(iv) IR Act. Parties Submissions 13. The Union submits that APPL 1 of 2024 ought to be dismissed without hearing and determination because the proceedings are not being fairly used and are being employed in an improper way. The effect of APPL 1 of 2024 will be to either (or all) fetter, stay, permanently stay, nullify, or usurp the proceedings in previously filed M 153 of 2023. In this way, the Union asserts, APPL 1 of 2024 amounts to an abuse of process. 14. The Union says the issues to be canvassed in APPL 1 of 2024 are the same issues to be canvassed in the application already before the Industrial Magistrates Court, namely M 153 of 2023. The Union says there will be a duplication of issues canvassed, and that cannot be considered necessary or desirable in the public interest. 15. The Union contends that APPL 1 of 2024 will cause delay to M 153 of 2023 which was filed before APPL 1 of 2024 and APPL 1 of 2024 is vexatious in this regard. The applicant in APPL 1 of 2024 was aware of the existence of M 153 of 2023 and the issue therein prior to filing APPL 1 of 2024 and asserts APPL 1 of 2024 amounts to an abuse of process to that end. 16. The Union refers the Commission to the decision of the Industrial Magistrate in Bernard Chipadza v Freo Group Pty Ltd [2020] WAIRC 00273; (2020) 100 WAIG 274, citing the High Court of Australia in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43 (Jeffery). In Jeffery, the High Court considered the approach taken in Australia and offered a number of categories of conduct attracting the intervention of the Courts in relation to an abuse of process and determined that ‘proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or an improper way’ would amount to an abuse of process. 17. The Union contends that in the present matter, there is a real and actual risk that there will be two different decisions on the same subject in two different jurisdictions. That is evidently so because as the Full Bench of the Commission has recognised in the decision of The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830; (2017) 97 WAIG 1689 (RTBU), in both s 46 and s 83 matters the Commission and the Industrial Magistrates Court (IMC) will necessarily interpret the relevant provision in accordance with the same legal principles. Therefore, not only will the same task be undertaken by this Commission should it hear APPL 1 of 2024, as the task that will be undertaken by the Industrial Magistrate in M 153 of 2023, but there is the real and actual risk that both those decisions will be different. 18. The Union submits that there is little utility to APPL 1 of 2024 being finally determined because it is likely that any declaration issued therein, would not ultimately resolve the dispute between the parties and in accordance with the decision of the Commission in Civil Service Association of Western Australia Incorporated v Director General, Department of Justice [2002] WAIRC 06496; (2002) 82 WAIG 2679 (CSA decision), further proceedings are not necessary or desirable in the public 104 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 645 interest. The Union contends that M 153 of 2023 was filed prior to APPL 1 of 2024, and is more advanced than APPL 1 of 2024, and is ultimately proceedings to hearing. 19. The Union submits that the s 46 APPL 1 of 2024 matter will not assist the s 83 M 152 of 2023 matter, as the Commission’s role under s 46 is not undertaken to provide assistance to the IMC in any regard. 20. The Union says there is no utility in APPL 1 of 2024 and it is not necessary or desirable nor in the public interest to be heard. It says the effect of the continuation of APPL 1 of 2024 will be that it will either (or all) fetter, stay, permanently stay, nullify or usurp the proceedings in previously filed M 153 of 2023. Allowing APPL 1 of 2024 to proceed would give rise to the perception that the administration of justice is inefficient, its careless of costs and its wasteful in its application of public monies. 21. On this point, the Union refers the Commission to a recent decision of the Supreme Court of Western Australia in Mineralogy Pty Ltd and Clive Frederick Palmer v Sino Iron Pty Ltd, Korean Steel Pty Ltd, Citic Ltd and Sinor Iron Holdings Pty Ltd [2020] WASC 40 (Mineralogy) [68]. The Supreme Court sets out some non-exhaustive broad principles into what may constitute an abuse of process and considered that for a judicial body to, citing Dowsett J in USB AG v Tyne [2018] HCA 45 at [59] ‘lend its procedures to the staged conduct of what is factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation, as Dowsett J found, is likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys. The primary judge was right to permanently stay the proceedings as an abuse of the process of the Federal Court.’ (original emphasis). 22. The Union says that there can be no doubt that if APPL 1 of 2024 proceeds: a) there will be a duplication of the court’s resources, mindful that both the Commission and the Industrial Magistrates Court fall under the same umbrella of the Department of the Registrar; and b) there will be an avoidable and illegitimate delay to M 153 of 2024 including a duplication of costs/ or unnecessary additional costs. 23. The Union says that to that end, the Commission’s system is not being fairly used and is being employed in an improper way, and all of which will give rise to the perception that the administration of justice is inefficient, careless of costs, and profligate in its application of public monies. Such a perception can be avoided by the dismissal of APPL 1 of 2024. 24. The Minister contends that the settled position is that set out in The Public Transport Authority of Western Australia v Australian Rail, Tram and Bus Industry Union of Employees, Western Australian Branch [2017] WAIRC 00177 (Olynyk), and is that a party is entitled to invoke the Commission's jurisdiction to declare the true meaning of an award and expect it to be exercised unless the application is predicated on facts belonging only to a person or persons claiming to be affected by the disputed meaning. 25. The Minister asserts that its application for interpretation does not reference facts belonging to the officers concerned in M 153 0f 2023 and asks a general question of whether cl 28 requires them to provide officers a 12-hour break where they have worked overtime following a 12-hour shift. The Minister submits it is entitled to expect that the application will be heard and determined. 26. The Minister refers the Commission to the decision of Senior Commissioner Cosentino SC in APPL 63 of 2023, applying Olynk. In those proceedings, WAPOU applied for orders dismissing or staying the proceedings under s 27(1)(a) as an abuse of process on the grounds that the proceedings duplicated issues raised by the Minister in defense of the proceedings between the same parties in the IMC. The Minister submits that Senior Commission Consentino found that where the balance is against dismissal of proceedings, unless tilted the other way, the s 27(1)(a) application to dismiss ought to be dismissed because: (a) there is an entitlement to invoke the Commission's jurisdiction under s 46; (b) the fact that an interpretation under s 46 will be binding on the parties and the Court weighs against dismissal; (c) the facts giving rise the application were generalised and it was clear the interpretation was sought in relation to employees generally; (d) the purpose of the question was clearly stated as the Minister seeking to understand his obligations; (e) the facts in the IMC proceedings were as likely as not to cloud the constructional issues; (f) the constructional issues were of the type that s 46 is intended to resolve and, therefore, it was appropriate for the Commission to resolve them; (g) the Minister was faced with allegations of contravention in the IMC and there was prejudice to the parties and individuals bound by the industrial agreement if the questions around construction are left unresolved; and, (h) there was no significant delay in commencing the interpretation application; (i) the IMC proceedings remained unlisted for hearing at all relevant times. 27. The Minister contends that the circumstances of APPL 1 of 2024 align with APPL 63 of 2023, and the Commission ought to similarly refuse the Union’s application to dismiss this matter. Principles Applicable to Summary Disposition 28. Section 27(1)(a) of the Act provides as follows: 27. Powers of Commission (1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it — (a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied — (i) that the matter or part thereof is trivial; or (ii) that further proceedings are not necessary or desirable in the public interest; or 646 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 104 W.A.I.G. (iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or (iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be; 29. Similarly, in RTBU, concurrent applications had been made to the Commission for an interpretation under s 46 and to the IMC for enforcement under s 83. Entitlement to invoke the Commission’s jurisdiction under s 46 30. As observed in RTBU and adopted by Senior Commissioner Cosentino in APPL 63 of 2023, the discretion in s 27 (1)(a) to dismiss an application is broad and does not require the achievement of a particular level of satisfaction. The onus is on the party seeking that the proceedings be dismissed to persuade the Commission that the other party’s entitlement to invoke the Commission’s jurisdiction ought to be overridden. 31. In this matter, the Union is seeking the dismissal of proceedings and must persuade the Commission to exercise its power to dismiss. 32. The Union contends there is an abuse of process because there are concurrent proceedings and the issues canvassed in the application before the IMC will be the same as those canvassed in this matter. 33. In RTBU, the majority of the Full Bench found that the application for an interpretation under s 46 concerned the same factual circumstances relating to one individual as the claim for enforcement under s 83 and therefore reasoned the s 46 application ought to be dismissed. 34. In this matter, the facts that give rise to the application are expressed generally and the Minister seeks an answer to be applied across the relevant workforce. In this respect, RTBU is distinguishable from this matter. This weighs against dismissing APPL 1 of 2024 at this stage of the proceedings. Effect of s.46(3) 35. The Union contends that APPL 1 of 2024 has no practical utility and refers the Commission to the CSA decision. 36. The Union submits that APPL 1 of 2024 should be dismissed because it is a duplication of issues that will be canvassed in M 153 of 2023 and refers the Commission to the CSA decision. 37. In the CSA decision, the Civil Service Association (CSA) had applied to the Industrial Commission for an interpretation of cl 18(1)(k) of the Public Service Award 1992. The respondent had applied to the Commission for the s 46 application to be dismissed because the same issues had been canvassed previously in s 44 proceedings brought by the CSA, and there were proceedings commenced in the IMC by one of the members of the CSA who was also subject of the application for interpretation. 38. I understand the Commission to have dismissed the application for an interpretation under s 46 on the basis that it was neither necessary nor in the public interest because even if the declaration sought was made, the issue between the parties would not be resolved because a declaration would have no practical effect [11], it was evident that the application for an interpretation was a stepping stone in aid of a dispute in the Industrial Magistrates Court and that dispute would remain to be dealt with [16] and a declaration would not encourage the parties to resolve outstanding matters without recourse to litigation and possibly encourage further litigation [17]. 39. In the proceedings before me, it is not possible for me to conclude that the same elements are present as those in the CSA decision. However, the duplicated applications in the CSA decision are all matters commenced by the CSA or one of its members. In this matter, the Union commenced the enforcement proceedings before the IMC, whereas the Minister has commenced this application and it cannot be said that it is a ‘stepping stone’ in the matter before the Industrial Magistrate. It is not the same circumstances as those found in the CSA decision. 40. A declaration issued pursuant to s 46 is binding on the parties and the Industrial Magistrates Courts pursuant to 46(3). In this matter, a declaration has a real prospect of resolving any disagreement as to the true meaning of the relevant clause. Such a declaration would lessen the likelihood of further litigation and disputation in this Commission and in other courts. This weighs against dismissing these proceedings. Nature of Dispute and Mechanism to Resolve 41. I now turn to considerations of the nature of the dispute and the mechanisms for resolution under s 46 and s 83 of the IR Act available to the parties. 42. In RTBU, the Acting President sets out the nature of the Commission’s powers under s 46: [100]: 100 From the authorities referred to above and the express provisions of s 46 and s 83 of the Act, the following principles emerge in respect of an award as defined in s 46(5): (a) The power to interpret the true meaning of an award, pursuant to the power conferred by s 46, is to enable a determination of whether ambiguity arises and to resolve it, if it does. (b) If a provision in question is capable in the ordinary sense of not having an ambiguous meaning, then consideration of the expressed or supposed intention of the provision does not fall to be considered under s 46. (c) If a provision is found to be ambiguous, the Commission acting pursuant to s 46 can embark upon a fact-finding exercise to determine the surrounding circumstances that existed when the award or 104 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 647 industrial agreement was made. These surrounding circumstances can include ascertaining the object of the provision by: (i) inquiring into the history of the award; (ii) any established custom, practice or usage which led to the making of the award and any relevant established custom, usage and practice since the award was made. (d) If ambiguity is found and after ascertaining the true meaning of the award and declaring its effect it is found the words in the provision in question are defective, in that the words do not put into effect or reflect that meaning or it is found that the words used require amendment to give fuller effect to the true meaning, the Commission is authorised to exercise arbitral power to amend the provision. (e) The power to interpret an award or industrial agreement pursuant to s 46 of the Act is, except for the power to amend a provision in s 46(1)(b), merely declaratory and any declaration made cannot be made as an order to enforce a right. (f) The determination of whether a particular employee has an entitlement pursuant to the provisions of an award is an enforcement matter in relation to which the Industrial Magistrate has exclusive jurisdiction to determine, pursuant to the power conferred by s 83 of the Act. 43. The Acting President refers to the power being one to enable a determination of whether an ambiguity arises and to resolve it. Assuming there is an ambiguity found, s 46 enables a declaration of the true meaning to be made and the Commission is authorised to exercise arbitral power to amend the provisions if this is required to give further effect to the true meaning. 44. The Minister’s application in this matter does not refer to an ambiguity within cl 28. The application states that ‘Some officers have questioned whether clause 28 of the industrial agreement requires the applicant (the Minister) to provide Officers with a 12 hour break if they worked Overtime following a 12 hour shift.’ The application does not set out the reasoning of the questions posed to the Minister by some officers nor the Minister’s response as to why the cl 28 does not require the officers be provided a 12-hour break. 45. The Union contends that the same task will be undertaken by this Commission should it hear APPL 1 of 2024 as the task that will be undertaken by the Industrial Magistrate in M 153 of 2023 and in these circumstances, there is the real and actual risk that both those decisions will be different. 46. The Union has not yet filed a response to the application in APPL 1 of 2024. The Union’s claim in M 153 of 2023 does not provide any further information concerning differences between possible constructions or interpretations that inform the application of the clause concerning mandatory breaks between shifts following the working of overtime. 47. However, at this stage of proceedings, the construction issue to be resolved and the parties’ contentions as to the true meaning are sufficiently set out to conclude that the same set of facts and same issues will be canvased and there is a real and actual risk that different decisions will issue. Without more, it is not possible to conclude that M 153 of 2023 will require the same task or that there may be conflicting outcomes in the two proceedings. The most that can be said is that there may be a risk, however the likelihood of this is not possible to conclude at this stage of proceedings. 48. However, as Senior Commissioner Cosentino observed in APPL 63 of 2023 ‘there is potential for prejudice to the parties and individuals bound by the industrial agreement if the questions around construction are left unresolved’. 49. Similarly, I refer to the observations of Industrial Magistrate Kucera in Western Australian Prison Officers’ Union v Minister for Corrective Services [2024] WAIRC 00152 on the appropriate avenue to resolve issues concerning disagreements on the application of industrial instruments: [65] Firstly where are respondent is a large and well resource government department, it is reasonable to expect it could have done more to prevent a contravention. On this, there were other avenues open to the respondent to resolve any issues it may have had regarding the interpretation of the 2020 agreement, in so far as it dealt with the requirement for Principal Officers to work on public holidays and what they would be paid. One such avenue was an application to the WAIRC under section 46 of the IR Act. This is a point to which I will turn to when framing the final orders. [78] Rather than adopting and applying by directive, a new blanket approach to entitlement provisions that exposed the respondent to the risk of pecuniary penalty, the respondent could have utilised the more cautious avenue available to it under section 46 of the IR Act. 50. The Minister, by APPL 1 of 2024, seeks to clarify their obligations with respect to prison officers who work overtime following a 12-hour shift. 51. Acknowledging that there may be a risk, although difficult to discern the likelihood in these matters, that there will be conflicting outcomes in the two proceedings, this needs to be balanced against the risk that the Minister faces to penalties as set out by Senior Commissioner Cosentino and Industrial Magistrate Kucera. These considerations weigh against dismissing the application. Abuse of Process 52. The Union says the Minister is using the processes in s 46 in an improper way and refers the Commission to Jeffrey in which the High Court of Australia examined what an abuse of process is and at [27] considered the approach taken in Australia and offered a number of categories of conduct attracting the intervention of the Courts in relation to an abuse of process and determined that ‘proceedings where the process of the court is not being fairly honesty used but is employed for some ulterior or improper purpose or an improper way’ would amount to an abuse of process. 53. The Union submits that the High Court went on at [28] to determine that although it offered a number of categories, the term 648 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 104 W.A.I.G. ‘abuse of process’ is not limited to any particular categories and observed that the categories of ‘abuse of process’ are not closed. 54. The Union submits that the Commission should adopt a similar approach to that of the Industrial Magistrates Court in Bernard Chipadza v Freo Group Pty Ltd [2020] WAIRC 00273 (Chipadza) applying those principles set out in Jeffery. 55. I understand the Industrial Magistrate dismissed the application before them in Chipadza because the application sought to relitigate a previous failed application. The earlier application had been determined prior to the second application, which set out the same claim and the same facts. 56. In this matter, the applications said to be duplications have not been made by the same party. The applications do not have the same purpose. The applications seek different outcomes and do not recite the same facts. The application before the IMC has not yet been decided. The circumstances in this application are different to those in Chipadza. 57. The Union submits that there can be no doubt that if APPL 1 of 2024 proceeds that: a) there will be a duplication of the court’s resources, mindful that both the Commission and the Industrial Magistrates Court fall under the same umbrella of the Department of the Registrar; and b) there will be an avoidable and illegitimate delay to M 153 of 2024 including a duplication of costs/ or unnecessary additional costs. 58. To that end, the Commission’s system is not being fairly used but is being employed in an improper way, all of which will give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public monies. The Union refers the Commission to the principles in Mineralogy and submits that adverse perceptions can be avoided, and in this case, it can be avoided by the dismissal of APPL 1 of 2024. 59. Acknowledging the principle set out by the Supreme Court in Mineralogy: [68] … (g) that ‘An abuse of process can extend beyond a mere situation of a party seeking to relitigate matters or issues that have been finally decided. There may be an abuse of process found by a person seeking to litigate matters which could and should have been litigated in earlier proceedings.’ (o) Towards an issue of illegitimate oppression by bringing successive civil actions, the plurality justices duly concluded in UBS AG v Tyne at [58] and [59], in the following terms: The fact that UBS is a large commercial corporation does not deny that permitting the Trust’s claim to proceed will subject it to unjustifiable oppression. That oppression is found not only in the significant delay in the resolution of the dispute and the inevitability of increased costs to UBS. At its core is the vexation of being required to deal again with claims that should have been resolved in the SCNSW proceedings. The fact that UBS had not been required to admit or defend the Trust’s claim does not lessen that vexation… On the final determination of the SCNSW proceedings, it was reasonable for UBS to order its affairs upon the understanding that the dispute between it and Mr Tyne, and the entities that he controlled, arising out of those dealings was at an end. For the Federal Court to lend its procedures to the staged conduct of what is factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation, as Dowsett J found, is likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys. The primary judge was right to permanently stay the proceedings as an abuse of the process of the Federal Court. (my emphasis) 60. I find that in the application commenced in APPL 1 of 2024 is not a duplication to that in M 153 of 2023 because they have not been made by the same party, the applications do not have the same purpose, they seek different outcomes and do not recite the same facts. 61. In this matter, the Minister has applied the relevant clause in the manner consistent with their interpretation of the meaning of the clause. Given there is a disagreement about the correct meaning and application of the clause from those persons affected by the clause, an application for interpretation is an appropriate course of action on their part. It cannot be concluded that the Minister could have or should have sought to litigate this matter in earlier proceedings. The Minister has not brought successive applications that could have been resolved in earlier proceedings. The application in M 153 of 2023 was commenced by another party, not the Minister. Conduct of Parties, Delays and Stages of Proceedings 62. The Union does not claim that the Minister’s conduct, other than the making of this application, is an abuse of process. 63. The Union submits that APPL 1 of 2024 will cause delays in proceedings in M 153 of 2023; however has not referred to specific nor actual delays. There was not a significant delay in the commencement of these proceedings by the Minister. Documents for the IMC proceedings indicate that those proceedings are at a preliminary stage. 64. These factors weigh against dismissing APPL 1 of 2024. Conclusion 65. For the reasons set out above, I refuse the Union’s application to dismiss APPL 1 of 2024. 104 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 649 2024 WAIRC 00295 INTERPRETATION OF THE DEPARTMENT OF JUSTICE PRISON OFFICERS' INDUSTRIAL AGREEMENT 2022