WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Arthur Alfred Dixon (Appellant) and Ministry of Justice. (Respondent). No 630 of 1996. BEFORE THE FULL BENCH HIS HONOUR THE PRESIDENT P.J. SHARKEY. CHIEF COMMISSIONER W.S. COLEMAN. COMMISSIONER R.N. GEORGE. 5 September 1996. Reasons for Decision. THE PRESIDENT: These are the unanimous reasons for de- cision of the Full Bench. This is an appeal against the decision of the Industrial Mag- istrate’s Court at Perth made on 28 February 1996 in com- plaint No 167 of 1995. The appeal is brought under s.84 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”), of which s.84(1) reads as follows— “(1) In this section ``decision’’ includes a penalty, order, order of dismissal, and any other determination of an industrial magistrate’s court, but does not include a decision made by such a court in the exercise of the jurisdiction conferred on it by— (a) section 96J; (b) Division 1 of Part 5 of the Workplace Agree- ments Act 1993; or (c) section 100 of that Act.” By the complaint, the complainant employee, a Community Corrections Officer employed in the Ministry of Justice, al- leged that, on various fortnightly pay periods, between 24 November 1991 and continuing, the “Ministry of Justice”, being a party bound by the Public Service Award 1992, Award No A 4 of 1989 (as amended) (hereinafter referred to as “the award”)— “failed to pay overtime allowance for work performed in excess of the normal hours for days on which the com- plainant was rostered and worked as required by Clause 19 & 21 of the said award. The complainant claims penalties, costs and interest and an Order for payment of the amount underpaid as may be determined with liberty to apply as to that amount.” BACKGROUND The background to the matter was this. The appellant had for some time been employed by the respondent. In 1991, the respondent set up the Intensive Surveillance Unit (hereinafter referred to as “the ISU”) where officers monitored the move- ment of persons subject to home detention orders. The appellant was apparently, at all material times, one of three officers who staffed the ISU on any given day, working one of three eight hour shifts per day every day of the week. By complaints Nos 1093, 1094, 1095 of 1994, and brought in the Industrial Magistrate’s Court, the appellant claimed that the respondent had failed to pay him overtime payments due and payable to him under the Public Service Award 1992 from 4 October 1991 to 28 November 1991. The appellant also wished to claim overtime payments which he said were due and payable under the award in respect of his employment after 28 November 1991. However, the appellant and the respondent came to an agree- ment that the decision(s) in complaints Nos 1093, 1094 and 1095 of 1994 would be used by them as a “test case” to re- solve the claims for the other periods after 28 November 1991, in respect of which the appellant claimed overtime. On 22 December 1994 His Worship, Mr G Calder IM, found complaints Nos 1093, 1094 and 1095 of 1994 (the test case) proven and made an order that the respondent pay to the WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 76 W.A.I.G. 4466 appellant the amounts of overtime to which His Worship found that he was entitled from 4 October 1991 to 28 November 1991. The amount to be paid was to be agreed between the parties and no penalty was sought. The order was complied with. The respondent appealed against His Worship’s decision to the Full Bench but that appeal was dismissed (see Public Serv- ice Commissioner v Dixon 75 WAIG 1822 (FB) delivered 17 May 1995). Pursuant to the agreement with the appellant, and as a result of the decision of His Worship, the respondent paid to the appellant overtime payments for the period ending 5 January 1995, in December 1995. The respondent refused to pay the appellant overtime for the period after 5 January 1995 despite the appellant’s claim that he was entitled to such payment. By complaint No 198 of 1995 the appellant’s claim for over- time for the period from 1 December 1992 to 13 July 1995 came on for hearing before His Worship, Mr R J Gething IM, in the Industrial Magistrate’s Court at Perth on 28 February 1996. That complaint was dismissed on 11 April 1996 ac- cording to the notation on the complaint. Complaint No 167 of 1995, the decision upon which is the subject of this appeal, was brought on 30 August 1995. By that complaint, as it was amended, overtime was claimed from 29 November 1991, together with penalties, costs and interest in the words which we have quoted above. That complaint was heard by His Worship on 28 February 1996 also. The agent appearing for the complainant (now the appel- lant) made it clear that complaint No 167 of 1995 related only to the period up until 5 January 1995. By the time the complaint came on for hearing on 28 Febru- ary 1996 the respondent had paid to the appellant all of his overtime payments for the period 29 November 1991 to 5 Janu- ary 1995. Mr Clohessy, the agent for the appellant, said that the amounts claimed for overtime payments to 5 January 1995, being an amount which it would seem was in excess of $10,000.00, had been paid to the complainant so that only the remaining claims, and these were for interest, penalties and costs, would be pursued. Indeed, Mr Clohessy observed that had agreement been reached in respect of interest, penalties and costs up to 5 January 1995, his principal would have sought to withdraw. At the hearing, Mr Clohessy claimed an order that interest be awarded pursuant to s.32 of the Supreme Court Act 1935 (as amended) (hereinafter referred to as “the Supreme Court Act”). Mr Clohessy submitted that proceedings here were civil upon the authority of Re Packington; Ex parte Executive Director, Building Management Authority and Another (1996) 64 IR 270 (Supreme Court of WA) (Full Court). Mr Clohessy also referred to Hocking v Port Hedland Regional Hospital 76 WAIG 1168 per Mr A R Robins IM and FPF&AIIU v Jason Industries Ltd t/a Jason Furniture 75 WAIG 1947. The respondent, through Counsel, opposed any order for interest (see page 25 of the appeal book (hereinafter referred to as “AB”)). His Worship observed at page 27 (AB)— “You might find yourself stuck with an argument: There has been no actual claim for those amounts to be granted so therefore you can’t ask for interest because there is no claim.” At page 31 (AB) His Worship indicated that he would want evidence of what the payments were, observing that he was given a piece of paper in the form of a submission which was not produced formally, nor was it subject to cross-examina- tion. Ms Sheridan, on behalf of the defendant, submitted that no costs should be awarded on the complaint because, on the first complaint in 1994, the test case, the costs to be awarded were left up to the parties. His Worship then suggested that she leave costs and deal with the substantial question of over- time. His Worship observed that Mr Clohessy had submitted that by paying these amounts voluntarily the respondent had ad- mitted that it was at fault in not paying the amounts claimed, and therefore the Ministry by making these payments admit- ted liability for the amount and should pay a penalty “for the failure to pay from 1991 until the date these were paid in”. Ms Sheridan relied on the agreement which was made to treat some cases as the test case, and also submitted that there should be no order for interest because the initial complaint in 1994 which was going to be used as a test case should apply. Therefore, it would be unfair to now claim interest on what was already agreed beforehand to be paid. Further, the inter- est in the initial complaint was not pleaded. It was said that it is discretionary whether or not to order interest to be paid (see FPF&AIIU v Jason Industries Ltd t/a Jason Furniture (op cit) per Mr I G Brown IM, and see also s.32 of the Supreme Court Act). His Worship also observed that he could not award interest for the amount because there was no claim for that amount. In his reasons for decision His Worship in dismissing the claim and making no orders as to costs made the following observations and findings— (1) He had heard no evidence of the facts which the com- plainant alleged against the defendant as far as pen- alty was concerned. (2) Since there was no evidence to support the claim he was unable to decide whether the defendant’s con- duct warranted a penalty. (3) Interest may not be awarded in a matter if it is not expressly claimed in the complaint. The complaint did not seek the payment of interest. (4) The defendant had made payments for the additional overtime work performed as agreed and this part of the present complaint he had not pursued. (5) (a) Because the defendant was very slow in mak- ing payments the complainant was justified in making his complaint in August 1995, but that would not justify application for new claims not contained in the previous complaint, that is for penalties or interest. (b) The defendant agreed to be bound by the or- ders made on the first complaint and they did not include orders for penalties or interest. (6) Since interest was not claimed in the original com- plaint, it could not be cured on this complaint. His Worship therefore dismissed the complaint and made no order as to costs. GROUNDS OF APPEAL The appellant’s grounds of appeal were as follows— “(1) That the Learned Magistrate failed to find the Com- plaint proved noting the admission that an amount of $10902.40 had been underpaid to the Complain- ant, which amount by admission was paid to the Complainant on 20/12/1995 without qualification. (2) That the Learned Magistrate erred in finding that the claim for interest had not been made on com- plaint. (3) That the Learned Magistrate erred in finding that the Complainant was bound by decisions in the ear- lier complaints, particularly when in those matters including an appeal and in his decision in Complaint 198/1995, he found he was not so bound. (4) That the Learned Magistrate erred in not hearing submissions as to the Complainant’s costs and pen- alties. (5) Such other grounds that may be adduced.” CONCLUSIONS The Industrial Magistrate dismissed the application. Ground (1) of the grounds of appeal raises squarely the question whether the Industrial Magistrate erred in dismissing the ap- plication noting when there was an admission that an amount acknowledged to be owing to the appellant for overtime was paid to him in December 1995. It was part of the submissions of the advocate for the re- spondent at first instance that because the amount was paid (as part of an undertaking that any amounts not paid would be paid following the “test case” referred to above), then no WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 4467 76 W.A.I.G. penalty should be imposed. There was, without doubt, an ad- mission on behalf of the respondent that an amount due to the appellant for overtime not paid to him was paid and it is clear that the failure to pay was a breach of the award. The test case was to determine whether the failure to pay overtime was a breach of the award. That case meant that other and subsequent failures to pay overtime were contraventions of the award and admitted to be such. That is why the pay- ments to the appellant were made in December 1995. The complaint was brought because these payments had not been made soon after the Full Bench had heard and deter- mined the appeal in the test case, but were delayed. The question is whether, within the meaning of s.83(2) of the Act, the contravention of or failure to comply with the award was proved. If it were proved then the Commission was bound to so find. If or until it did so, matters of penalty, interest or costs were not matters which the Industrial Magis- trate could at all consider. By s.81CA of the Act the “general jurisdiction” of the In- dustrial Magistrate’s Court is defined to mean, inter alia, the jurisdiction of an Industrial Magistrate’s Court under s.83 of the Act. That is the jurisdiction which was here being exer- cised. S.81CA(2) of the Act provides as follows— “(2) Except as otherwise prescribed by or under this Act or another law— (a) the powers of an industrial magistrate’s court; and (b) the practice and procedure to be observed by an industrial magistrate’s court, when exercising general jurisdiction are those provided for by the Local Courts Act 1904 as if the proceedings were an action within the meaning of that Act.” That provision was introduced by s.21 of the Act, No 79 of 1995, which came into operation on 16 January 1996, before these proceedings were heard on 28 February 1996. The proceedings are, of course, civil (see Re Packington; Ex parte Executive Director, Building Management Author- ity and Another (op cit) (Supreme Court of WA) (Full Court)). Regulation 3(1) of the Industrial Relations (Industrial Mag- istrates’ Courts) Regulations 1980 prescribes as follows— “(1) Subject to the Act and to these regulations, proceed- ings before an industrial magistrate’s court and in particular the making of a complaint, the issue of a summons, the summoning of witnesses, the fees to be paid relating to any matter, the taking of evidence, the hearing and determination of a complaint and the costs and allowances to parties and witnesses shall be, with such modifications as circumstances require, those prescribed by the Justices Act, 1902- 1979, in respect of proceedings before justices for a simple offence.” It is expressed to be “Subject to the Act and to these regula- tions”. The regulations are another law for the purposes of the section (see the definition of “written law” in s.5 of the Inter- pretation Act 1984), and they prescribe otherwise the practice and procedure of the Industrial Magistrate’s Court in s.83 matters. They therefore apply to s.83 proceedings. Admissions made by agreement between the parties or made by Counsel to the court are binding in civil proceedings. They may be retracted if the court gives leave to do so (see “Cross on Evidence”, Australian Edition, paragraph 3160). In criminal proceedings an accused person either person- ally or by his Counsel or Solicitor may admit on his trial any fact alleged or sought to be proved against him, and such ad- mission shall be proof of that fact without other evidence (see “Cross on Evidence” (op cit), paragraph 3170, and s.34 of the Evidence Act 1929). Accordingly, whether these proceedings were civil or crimi- nal, the Industrial Magistrate could have found that any al- leged contravention or failure to comply proven on the admission of Counsel or an advocate. Notwithstanding the somewhat tortuous route which these proceedings took be- fore the Industrial Magistrate, it is quite clear, given the sub- missions which were made in the first place as to questions of interest, cost and penalty, and by the advocate for the respond- ent, that it was accepted that the breach as alleged was admitted by the respondent through its advocate to have oc- curred (see pages 32-34 and 36-37 (AB)). In particular, at page 37 (AB) Ms Sheridan, who appeared for the respondent at first instance, said— “As a result of that and as you are aware, the ministry was found to have breached the award, and as a conse- quence of that the ministry has complied in paying it. The ministry has in no way at any time tried to avert its obligations in paying what people are entitled to. That is also on the transcript in those earlier complaints.” (See also page 38 (AB)). At page 48 (AB) Ms Sheridan said— “Well he was paid from that particular decision. With respect to the rest of the payments, yes, he wasn’t paid until December 1995.” His Worship put the case properly at page 36 (AB) when he said— “1994— determined that the payments should have been made from 1991 through to 1994. Right? And because the ministry did not make those payments, then the min- istry should suffer a penalty for its failure to pay that over- time for that period.” Ms Sheridan said at page 36 (AB)— “The ministry has at no time sought to frustrate the pro- ceedings in any way.” (See also Ms Sheridan’s admission at page 29 (AB)). His Worship, notwithstanding remarks he made at page 31 (AB), seems to have accepted at page 36 (AB) that an admis- sion of contravention or non-compliance had been made. By reference to the whole of the transcript, but particularly those excerpts to which we have referred, there was a formal admission of the failure to pay overtime as alleged in the com- plaint, contrary to the provisions of the award, and an admis- sion of contravention or failure to comply as alleged. That admission was sufficient to constitute proof for the purposes of s.83(4) of the Act of the contravention of the award al- leged. The Industrial Magistrate erred in failing to so find. The Industrial Magistrate erred in dismissing the complaint which he should have found proven. He should have then gone on to deal with questions of penalty, interest and costs, but had no power to do so until he found the complaint proven, which he did not. Ground (1) is made out. Grounds (2), (3) and (4) are, for those reasons, not made out. INTEREST We do not have to decide this point. However, we make a number of observations which, we hope, might be helpful, as to the question of interest. The appellant claimed interest re- lying on s.32 of the Supreme Court Act. S.32 reads as fol- lows— “(1) In any proceedings for the recovery of any money (including any debt or damages or the value of any goods), the Court may order that there shall be in- cluded, in the sum for which judgment is given, in- terest at such rate as it thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect. (2) This section does not— (a) authorize the giving of interest upon interest; (aa) apply in relation to any general damages in respect of pain and suffering or the loss of the enjoyment of or the amenities of life awarded in relation to personal injury or the death of a person; (b) apply in relation to any debt upon which in- terest is payable as of right whether by virtue of any agreement or otherwise; or (c) affect the damages recoverable for the dishon- our of a bill of exchange. (2a) In subsection (2)(aa) “personal injury” includes any disease and any impairment of a person’s physical or mental condition. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 76 W.A.I.G. 4468 (3) This section applies to proceedings in a Local Court; except where the sum for which judgment is given does not exceed $750.” We interpret the meaning of s.32 in the context of the whole of the Act, giving the words their ordinary and natural mean- ing. By doing so, no ambiguity or absurdity is created. Firstly, the section prescribes that in any proceedings for the recovery of money the court (which in s.4 of the Supreme Court Act is defined as the Supreme Court of Western Australia) may or- der that there shall be included in the sum for which interest is given, interest at such rate as it thinks fit. S.32(1) otherwise prescribes. S.34 of the Supreme Court Act contains a rule of law be- cause it is part of Division 3 of Part III “Miscellaneous Rules of Law”. S.32(2) of the Supreme Court Act does not preclude the order being made. S.32(3) provides that the section applies to proceedings in a Local Court where the sum for which judg- ment is given does not exceed $750.00. S.34 of the Supreme Court Act prescribes that the several rules of law enacted and declared by this Act shall be in force and take effect in all courts whatsoever in Western Australia so far as the matters to which such rules relate shall be respec- tively cognisable by such courts. The Industrial Magistrate’s Court is a court and s.32 of the Supreme Court Act applies to proceedings in it, provided that s.83 proceedings can be said to be proceedings for the recov- ery of money. S.83(1) of the Act enables certain prescribed persons to ap- ply in the prescribed manner to an Industrial Magistrate’s Court for the enforcement of an award, industrial agreement or or- der “where a person contravenes or fails to comply with any provision of an award, industrial agreement or order” (with some exceptions). On the hearing of such an application, the Industrial Magistrate’s Court is empowered to issue a caution or impose a penalty “if the contravention or failure to comply is proved”. Otherwise the court dismisses the application. The Industrial Magistrate’s Court is empowered to do those things with or without costs (see s.83(2) of the Act). S.83(4) of the Act provides— “(4) Where in any proceedings brought under subsection (1) against an employer it appears to the industrial magistrate’s court that an employee of that employer has not been paid by that employer the amount which he was entitled to be paid under an award or order the industrial magistrate’s court shall, subject to sub- section (5), order that employer to pay to that em- ployee the amount by which he has been underpaid.” Since the proceedings are enforcement proceedings directed to proving a contravention of or failure to comply with any provision of an award, and an order to pay an amount which an employee was not paid, when he was entitled to be paid such amount, can only be made if it appears to the court that the employee has not been paid the amount. In any proceed- ings brought under s.83(1) of the Act to enforce the award, it might be said that these were not proceedings for the recovery of money. We obviously do not decide that. However, if this is an action for the recovery of money, which is doubtful because the agent for the applicant before the In- dustrial Magistrate acknowledged that the amount of over- time alleged not to have been paid was paid before the application came on for hearing, no order which might be said to be a judgment for the recovery of money was sought. Interest may only be ordered to be paid as part of any judg- ment. If an order under s.83(4) of the Act can be said to be a judgment then none was sought and there was no “judgment” in which an order for interest might be included. Interest can- not, under s.32 of the Supreme Court Act, be ordered to be paid in isolation. We would have difficulty, on the arguments before us upon this appeal, seeing how an order could be made for the payment of interest. We make these observations in the hope that they may be of some assistance. FINALLY We would vary the decision of the Industrial Magistrate’s Court by substituting a finding of proven for the dismissal of the complaint. We would remit the questions of interest, costs and penalty to the Industrial Magistrate to be dealt with ac- cording to law and these reasons. Order accordingly, Appearances:Mr R Clohessy, as agent, for the appellant. Mr D Matthews (of Counsel), by leave, on behalf of the respondent.