WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Krysti Guest

APPLICANT

-v-

Kimberley Land Council

RESPONDENT

CORAM Commissioner S Wood

HEARD Thursday, 22 January 2009, Friday, 30 January 2009, Monday, 16 February 2009, Friday, 27 February 2009, Monday, 30 March 2009, Wednesday, 17 June 2009

DELIVERED wednesday, 8 July 2009

FILE NO. U 161 OF 2008

CITATION NO. 2009 WAIRC 00443

CatchWords Industrial Law (WA) - Termination of employment - Harsh, oppressive and unfair dismissal - Jurisdiction - Trading Corporation - Application to reopen hearing of jurisdiction - Industrial Relations Act 1979 s.27(1)(m)

Result Application to reopen hearing of jurisdiction granted

Representation 

Applicant Mr S Millman (of counsel)

Respondent Mr D Schapper (of counsel) and Mr D Jones

Reasons for Decision

Introduction

1          A jurisdictional challenge by the respondent to this application for unfair dismissal was heard by the Commission on 16 February 2009 and 27 February 2009.  The Reasons for Decision were issued on 30 March 2009 and I found that I have jurisdiction to hear the substantive application.  That finding was not reduced to an order or declaration; neither party requested that this be done.  The substantive hearing was listed for 15 June 2009 to 18 June 2009 in Broome.  The respondent by letter dated 9 April 2009 and 8 May 2009 sought an adjournment of the hearing to pursue an appeal of the Commission’s finding.  The applicant consented to the adjournment.  The matter was adjourned pending outcome of the appeal.

2          Arising from the appeal, by letter dated 16 June 2009 the respondent sought to reopen the hearing of the issue of jurisdiction, and if this application should fail then the respondent requested that the Commission reduce the earlier finding to a declaration or order.  The reason for the latter request is that the appeal at that time could not proceed as the finding had not been perfected by way of order or declaration (see The Construction, Mining & Energy Workers’ Union of Australia, Western Australian Branch v The United Furniture Trades Industrial Union of Workers, WA, [1990] 70 WAIG 3913).  The applicant opposed the application to reopen the jurisdictional hearing.  The matter came on for conference on 17 June 2009 and the parties decided to proceed by way of written submissions to deal with the application to reopen.  Should the application to reopen be dismissed then both parties seek that the original finding be reduced to order or declaration.

3          It is common ground that the Commission has power to reopen the hearing of jurisdiction.  Counsel for Ms Guest at paragraph 2 of his submissions stated:

“Until final orders in a matter have been perfected by the Commission, the Commission is not functus officio.  As stated by the Full Bench in CFMEU v BHPB (2004) WAIRC 12462:

The Commission is not functus officio in this matter; the Commission has issued its Reasons for Decision and the Minute of a Proposed Order.  We therefore consider that we do have the power pursuant to s27(1)(e) to reconvene for the purposes set out in s27(1)(m) of the Industrial Relations Act 1979 and reopen the hearing if the circumstances warrant that course of action.”

Submissions

4          Hereinafter I will refer to the Kimberley Land Council (the KLC) as the applicant in this matter (the respondent in the substantive application).  The applicant seeks the following:

“1. To adduce further evidence as to the nature and extent of the services it provided and payments received therefore; and

2. To adduce evidence as to the nature and extent of the services it acquired and payments made therefore; and

3. To make submissions in relation to:

3.1 The nature of the findings that the Commission must make in order to properly ground a finding of jurisdiction; and

3.2 The degree of satisfaction that must be achieved before findings may be made about these matters.”

5          The applicant says that from the Reasons for Decision and hearing there is a “great deal of uncertainty” as to the services provided by the KLC for the receipt of $3.9/4.8 million.  The extent of monies received by way of grant as opposed to payment for services is “precisely ascertainable”.  The applicant attributes the confusion to the cross-examination by counsel for Ms Guest and to the use of video-link.  The applicant submits that it is highly unsatisfactory to determine jurisdictional questions “in such an unclear and confused state” when the facts are precisely ascertainable.  It is not correct that the Commission is not an investigative authority in that section 23(1) of the Act provides that the Commission may “enquire into” an industrial matter.  The applicant also seeks to lead evidence as to the services purchased as well as those rendered.

6          The applicant seeks also to make further submissions to the effect that the Commission has applied the wrong test and not reached a relevant conclusion of fact on which to base the finding of jurisdiction.  The applicant submits:

“If leave is given, the respondent intends to submit that it is not enough to find that the Kimberley Land Council (KLC) has failed to prove that it is a trading corporation.  Rather, what is required is that the Commission must be actually persuaded by the evidence to the positive conclusion that the KLC is not a trading corporation.  And that this latter conclusion could not possibly be reached on the evidence so far adduced.”

7          The applicant submits that, “it would be proper and desirable in the interests of the administration of justice” to deal with these matters now rather than on appeal, and may shorten the proceedings.

8          Hereinafter I will refer to Ms Guest as the respondent in this matter (the applicant in the substantive matter)  The respondent quotes a series of relevant cases and then states:

“The common law principles relevant to an application to re-open a case can be summarised as follows:

• The power to re-open is discretionary;
• In accordance with the public interest in maintaining the finality of litigation, a party is to be bound by its conduct of its case except in exceptional circumstances.  The principle of finality of litigation is to ensure a degree of regularity and certainty necessary for the fair and predictable conduct of litigation.  Courts should not encourage carelessness by parties or legal representatives and thereby put this fundamental principle at risk;
• The jurisdiction is not to be exercised for the purpose of generally re-agitating arguments already considered by the Court, including because the party seeking a rehearing failed to present the argument in all its aspects or as well as it might have been put.  Further, if there was a deliberate decision not to call the evidence sought to be led, this will generally lead to a decisive argument against the application to reopen;
• The jurisdiction to reopen will be enlivened if the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.  Further the fresh evidence must be so material that the interests of justice require it to be led, that the evidence, if believed, would most probably affect the result and that the evidence could not by reasonable diligence have been discovered before.
• Any pleaded or asserted personal stress of the cross-appellants would be relevant in a reopening application.”

9          The respondent in answer to the applicant’s submissions states:

“The applicant’s submissions do not separate the facts upon which they assert the Commission should base a finding to reopen from its legal arguments as to the reasons the Commission’s discretion should be exercised.  However, the facts asserted appear to be as follows:

• On the evidence provided by the applicant to the Commission, there is uncertainty as to what services the applicant provided.
• On the evidence provided by the applicant to the Commission, there is uncertainty what income was received by way of grant as opposed to income received by way of payment for services.
• The question of what income was received by the applicant by way of payment for services or by way of grant is a fact which is ‘precisely ascertainable’.
• This confusion was caused by the respondent’s confusing and unclear cross-examination of the applicant’s witnesses.
• The confusion in the evidence was compounded by the fact the applicant’s witnesses gave evidence by video link.
• No evidence was given as to what services the applicant purchased and this bears upon the characterisation of a trading corporation.
• The Commission applied the wrong test in assessing its decision as to jurisdiction.”

10       The respondent submitted that the applicant’s submissions make no attempt to apply the established common law principles to the facts upon which it bases its application to reopen.  They merely seek to re-agitate arguments considered by the Commission.  Mr Powrie made a deliberate decision not to tender the evidence which the applicant now seeks to adduce.  The KLC was given leave to re-open at first instance.  There is not one fact submitted by the applicant which “justifies a deviation from the public interest in maintaining the finality of litigation”.  A further delay to the substantive hearing will prejudice Ms Guest who has always and continues to seek reinstatement.

11       The applicant in reply submitted that the chief factor said by the respondent to militate against a reopening is the requirement for finality of litigation.  The litigation will not be final as the applicant has appealed and will, if need be, pursue the appeal.  A reopening may shorten the litigation.  The issue is one of jurisdiction which the Commission is required to enquire into and determine before exercising any of its powers.  The applicant states:

“Further the commission has misapprehended the law in that it has found that it has jurisdiction without making a finding the respondent was not a trading corporation.  Such a finding was a necessary finding in order to ground jurisdiction.  It was not enough to find that the respondent had failed to demonstrate that it was trading (sic) corporation.

These misapprehensions cannot be attributed solely to neglect or default of the respondent.  On the contrary, it was the applicant who, wrongly, submitted and persuaded the Commission that the respondent bore the onus of demonstrating that it was not a trading corporation.

Further, it is true that the respondent’s advisers did not, in bringing the appeal, advert to the absence of a formal order and the consequences of that for the appeal.  However, the applicant’s advisers also erred in not adverting to the point.  Had that error not been made by them the delay that has been occasioned would have been avoided.”

Considerations

12       The Commission has a broad discretion in considering whether to reopen a hearing.  This discretion must be exercised with care.  In Metwally v University of Wollongong (1985) 60 ALR 68, the High Court held:

“It is elementary that a party is bound by the conduct of his case.  Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”

13       The principles to be considered when deciding whether to reopen a hearing were enunciated by Wolff CJ in Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88.  He stated:

“There is a dearth of authority as to the circumstances in which the court should reopen the evidence after the trial has concluded.  I consider that a court should be cautious in doing so and should admit fresh evidence of this nature only when it is so material that the interests of justice require it, and the evidence if believed would most probably affect the result, and further that the evidence could not by reasonable diligence have been discovered before.”

14       The need for careful consideration is particularly so where, as in this instance, Reasons for Decision have been issued (see Smith v New South Wales Bar Association [1992-1993] 176 CLR 256 at 266 and 267, and Mickelberg v The Queen [1988-1989] 167 CLR 259 at 301).  The ultimate emphasis being whether the admission of the evidence would most likely affect the result and the interests of justice require it.

15       The applicant seeks not only to adduce new evidence but also to make further submissions.  In McKay and Anor v Hudson and Ors [2001] WASCA 387 at paragraphs 28-31 Olsson AUJ stated:

“28 It is trite to say that it is only in an exceptional case that the court will permit a party against whom an adverse decision has been given to raise a new line of argument which – deliberately or by inadvertence – the party did not pursue, when there was an opportunity of doing so (University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483).

29 In the instant case, the appellants themselves raised the point and elected to abide by counsel's advice not to pursue the point.

30 With all due respect, it is difficult to follow the logic of that advice.  On the appellants' present contention, if the proposed evidence is significant in the respect now sought to be propounded, it was always so significant, regardless of the fine finish issue.  There would have been no inconsistency in advancing it.  The omission of the appellants to seek to re-open was a deliberate tactical decision and, generally speaking, they should be held to it – notwithstanding what fell from Clarke JA in Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478.  It is most undesirable that parties be permitted to re-open their evidentiary case in circumstances such as that now under consideration, unless the exclusion of the new evidence is patently likely to lead to an injustice because of the apparently persuasive and important nature of the material sought to be adduced.  I consider that the application should not succeed for that reason.

31 Quite apart from that consideration, if the appellants wish to now adduce fresh evidence, they must, in any event, satisfy three preconditions:

(1) that it could not, by reasonable diligence, have been obtained at the trial;

(2) that, had it been adduced at that time, an opposite result would have been likely; and

(3) that the proposed new evidence is credible (Greater Wollongong City Council v Cowan (1955) 93 CLR 435).”

16       It is important in deciding this application to restate briefly what the original hearing of jurisdiction concerned.  It concerned the establishment of a jurisdictional fact; namely whether the KLC is a trading corporation.  In brief, the respondent (in this matter) says that the KLC is not a trading corporation in that it is a public benevolent organisation whose main purpose, by statutory recognition, is the promotion and protection of native title in the Kimberleys.  The KLC’s activities are not commercial in nature.  The applicant (in this matter) says that the KLC is a trading corporation as certain of its activities are commercial in nature and these activities make up a substantial portion of their annual income.  The dispute centred on the Native Title Representative Body (NTRB) work of the KLC and its non-NTRB work.  Both parties relied on the decision of the Industrial Appeal Court (IAC) in the Aboriginal Legal Service of Western Australia (Inc) v Lawrence [No 2] [2008] WASCA 254 (the ALS case).  The KLC maintained at all times that the overall test is the current activities test.  As the organisation earned $4.816 million per year through the provision of services (specifically Work Program Clearances (WPCs)), which represented on average 29.8% of their overall yearly income, a significant portion of the KLC’s income is derived from trading activities.  Counsel for Ms Guest argued that the predominant activities of the KLC are in fulfilment of its statutory obligations as a NTRB, namely the facilitation and assistance of native title claims and future act negotiations and agreements, and are not trading activities.  The bases for much of the detailed evidence upon which both parties relied were the Annual Reports of the KLC.

17       There can be no doubt in respect of points 1.1 and 1.2 of the applicant’s submissions that the evidence they now seek to adduce is all evidence that the KLC was reasonably able to bring forward to the hearing at first instance.  Mr Schapper at paragraph 13 of the applicant’s submissions refers to the 2008 Annual Report which is already in evidence as Exhibit R2 and about which much was said.  Mr Powrie as detailed in the earlier Reasons for Decision at paragraph 55 stated that much of the detail of the non-NTRB income could be collated but would take some time and that he did not consider it to be relevant.  This would seem to be the same evidence that the applicant now seeks to adduce (see paragraph 1.2 of the applicant’s submission).  Mr Schapper later in his submission refers to the $3.9/4.8 million about which much was said at the earlier hearing.

18       Mr Jones for the KLC sought on 27 February 2009, some 11 days after the first day of hearing and after the evidence for the respondent was closed (Transcript page 61), leave to “re-open the evidence of Mr Powrie” (Transcript page 65).  This was opposed by counsel for Ms Guest.  In any event leave was given and a further email was tendered in evidence for the KLC.

19       The question as to what comprised the $4.816 million in income upon which the respondent case relied was most certainly relevant.  It was not adequate to simply assert the amount and ascribe it to WPCs, mainly for mining companies.  The detail of the Annual Report upon which this figure was based was challenged via cross-examination.  I found that the Annual Report most probably included all income and expenses of the KLC, and it was not likely that this income included $4.816 million for WPCs.  It is not now for the applicant to assert “uncertainty” and “lack of clarity” around what this figure represented by way of activities and state that this was due “in large measure” to the “confused and unclear” cross-examination.  If that was the case then that was rectifiable at hearing by proper objections and re-examination.  It is not also for the applicant to now ascribe error due to the video-link when it was they who sought the use of this link at the directions hearing on 30 January 2009.  The applicant then made no complaint about the quality of the link or its impact on the fairness of the hearing.  No complaint was expressed then or now about the unfairness or prejudice derived from the conduct of the hearing.

20       In coming to the decision expressed in the Reasons for Decision issued on 30 March 2009 I considered whether it would be appropriate to allow the respondent to lead further evidence as to the extent of services it says it provides commercially.  In those reasons at paragraphs 60 and 61 I stated:

“In saying this I am mindful that the matter before me is a question of jurisdiction; does the Commission have power to hear the merits of the unfair dismissal claim.  An option would be for the respondent to be given a further opportunity to present the information which Mr Powrie says is available, but will take time to extract, about the payments of mining companies for WPCs.  The applicant has claimed, and still claims reinstatement, even though she has shifted to Melbourne for personal reasons.  Towards that end counsel for the applicant has pressed for the Commission to deal with this matter expeditiously.  In my view it would indeed be harder for an applicant to sustain an argument about the practicability of reinstatement if the elapse of time between dismissal and substantive hearing was considerable.  This says nothing about the merits of the applicant’s claim.  I am mindful also that the Commission is not for the purposes of this matter an investigative authority.  Both parties are represented at hearing and the hearing was adjourned to a second day to complete the matter.  The respondent chose to call further evidence after hearing the complete evidence of Mr Hunter and Mr De Silva.  They had the opportunity to seek leave to introduce further evidence on the second day of hearing or make an application for an adjournment if they had wanted to do so.  They chose only to seek leave to introduce an email.  The parties are responsible for their own cases.

I conclude that I cannot, on the evidence before me, find that the respondent has earned $3.9 million (let alone $4.86 million) a year in activities which could be classed as trading activities.  In that sense the respondent has failed to discharge the onus upon them.  In light of this, and in conjunction with the comments I have made as to the purpose, structure and broader activities of the KLC, I therefore find that the Commission has jurisdiction to hear and determine the applicant’s claim.”

21       Whilst not stated explicitly, it would seem from the applicant’s submissions that their complaints relate mostly to these two paragraphs.

22       The applicant complains essentially that the course of action I chose was wrong in that as this matter concerns a question of the Commission’s powers, I should have called for further evidence to ascertain precisely whether the KLC is or is not a trading corporation.  They maintain it is not sufficient and wrong in law to say that the KLC failed to prove it is a trading corporation.  Counsel for Ms Guest wrongly persuaded the Commission that the KLC bore the onus to prove this.  The Commission must also make a positive finding that the KLC is not a trading corporation.  The Commission is required to “enquire into” the matter and precisely determine the question.

23       These submissions raise an issue as to the role of the Commission in matters to do with determining jurisdiction.  In The Queen against The Judges of the Federal Court of Australia and Another; Ex parte The Western Australian National Football League (Incorporated) and Another (1979-1980) 143 CLR 190 at 202 Barwick CJ stated:

“Where constitutional competence to create the jurisdiction depends on the actual existence of some specific fact or situation the court or tribunal, though it may form a view as to whether the fact or situation exists, is not competent to decide that in truth either does exist: only this Court may conclusively determine the actual existence of the fact or situation which grounds the constitutional power.”

24       Perhaps then the role to be undertaken by the Commission is best described in the decision of the High Court in The Owners of the Ship “Shin Kobe Maru” and Empire Shipping Company Inc (1994) 181 CLR 404 at 426.  The Court stated unanimously:

“Standard of proof and jurisdictional facts

...

Where jurisdiction depends on particular facts or a particular state of affairs, a challenge to jurisdiction can only be resisted by establishing the facts on which it depends.  And, of course, they must be established on the balance of probabilities in the light of all the evidence advanced in the proceedings held to determine whether there is jurisdiction.”

25       It is not for the Commission to run the case for a party to the proceedings.  This is in part what I alluded to, albeit briefly, in using the term “investigative authority”.  It was perhaps not the best expression, but s23(1) of the Act does not allow the Commission to conduct itself in a way which could lead to claims of partiality.  The Commission may seek clarification or direct that material be put, but each party makes their own decisions as to how best to present their case.  For the Commission to do otherwise might lead to complaints of unfairness or bias.  The Commission must make findings of fact, and based on the evidence provided and on the balance of probabilities determine whether there is jurisdiction.  In this case determine whether the KLC is or is not a trading corporation.  My earlier Reasons may not have been expressed clearly enough, however, I am not persuaded that somehow I erred through lack of findings, certainty or precision at first hearing such that the matter should be reopened.  Nevertheless, at paragraph 10 of the applicant’s submissions in reply the applicant suggests that the Commission applied the wrong test in that I stated that the KLC bore the onus of establishing that, and I think it should read “was a trading corporation”, rather than “was not”.

26       Counsel for Ms Guest, at first instance, stated in closing submissions that:

“… there are two propositions that you would need to accept in order to accept the applicant … the respondent's case.  And can I say this: the law is clear on this point.  The respondent bears the onus of proof in demonstrating … Lawrence v the ALS, I find is probably the best authority to refer to on this point.  The respondent bears the onus of proof in demonstrating.  It has raised this jurisdictional question.  It has raised this point.  It bears the onus of proof in demonstrating that it is a constitutional corporation in order to relieve you, sir, of your jurisdiction.  They need to demonstrate two things.  In order for you to accept their submissions, you need to … you need to accept … and for them to succeed … you need to accept that the non-NTRB work is significant, that that is work that is not connected with its … the discharge of its functions under the Native Title Act.  You need to accept that that work is significant and you need to accept the second proposition that as well as being significant that work is commercial.”

27       Counsel stated also (Transcript page 113) that the respondent bears the onus and referred to, “the lack of significant evidence led by the respondent to discharge its obligations”.  Mr Jones for the KLC was silent on this point.

28       In Aboriginal Legal Service of Western Australia Incorporated and Mark James Lawrence (2007) 87 WAIG 856 at 869 (ALS) the Full Bench considered the question of onus as it may relate to a jurisdictional challenge based on the respondent claiming they are a constitutional corporation.  They stated:

“12. Onus of Proof

121 There was some discussion at the hearing of the appeal as to whether any party had the onus of proof in the jurisdictional question which had to be determined by the Commission.

122 The appellant asserted it was a trading corporation and therefore the Commission did not have jurisdiction, but this does not necessarily mean the appellant has an onus to establish that fact.  Some consideration of an analogous question was provided by Barwick CJ in R v Judges of the Federal Court of Australia and Another; ex parte The Western Australian National Football League (Inc) and Another (Adamson) (1979) 143 CLR 190 at 202-204 and in R v Heagney and Another; ex parte ACT Employers Federation and Others (1976) 137 CLR 86 at 89.

123 It was conceded by the appellant that if a party to an application before the Commission which was a corporation, made a bare assertion that it was a trading corporation, the Commission would not then have before it sufficient evidence to decide the jurisdictional question.  The appellant’s counsel therefore submitted that there was at least an evidential onus upon such a party to place before the Commission sufficient evidence to allow it to determine, as a question of fact, the issue of whether that party was a trading corporation.  The position of the Commission in a situation where there was before it some, but in the opinion of the Commission insufficient, evidence to allow it to determine the jurisdictional question was also discussed with counsel.

124 The Minister submitted that in such a situation the Commission had the power to and should seek additional evidence and direct the parties to provide it.  In support of this, counsel for the Minister, after the hearing and as invited by the Full Bench, cited the decision of the Industrial Appeal Court in Commissioner of Police v Civil Service Association of WA Incorporated [2002] WASCA 19.

125 Although this issue may become relevant in another application before the Commission, or an appeal before the Full Bench, it is not necessary to further consider in the present appeal.”

29       In short, the matter was not determined by the Full Bench in the ALS case and did not arise at first instance or before the IAC.  I need now to address the question of onus.  I have found little to assist me on this issue, however, in Attorney-General for the State of Queensland and Riordan and Others (1997) 192 CLR 1 the High Court considered an issue concerning the establishment of a jurisdictional fact, namely whether an industrial dispute existed.  Toohey, J stated at paragraph 24:

“In Re State Public Services Federation I discussed the role that onus has to play when the existence of an industrial dispute is asserted.  Onus may not be the happiest of terms to use in relation to proceedings before the Commission since the Commission "is not bound by any rules of evidence" and "may inform itself on any matter in such manner as it considers just" (the Act, s 110(2)(b)).  Nevertheless, I adhere to what I said in that case [88]:

"It is for the applicant who has invoked the jurisdiction of the Commission to make good the proposition that jurisdiction exists.  But, in doing so, the applicant will be assisted by the evidentiary weight to be attached to the service of a log of claims and a failure to accede to the demands contained in the log."

Whether or not one uses the term onus, the statutory functions of the Commission are to prevent and settle industrial disputes (the Act, s 89).  "Industrial dispute" is defined by s 4(1) in wide terms which include "a situation that is likely to give rise to an industrial dispute".  Nevertheless as Windeyer J observed in Ex parte Professional Engineers' Association [89]:

"It is not possible by fictions to transgress the boundaries of the Constitution.  A dispute may be a paper dispute.  It must still be a real dispute, really extending beyond the boundaries of any one State."

It follows that, however the "standard of proof" is expressed, there must be material before the Commission from which it can legitimately conclude that an industrial dispute (as defined) exists.

Reference to a "paper dispute" tends to cloud the issue.  A demand and a log of claims have evidentiary value.”

30       I take this as a clear expression that the “onus” rested with Ms Guest at first instance to establish that the Commission in fact had jurisdiction.  Clearly, in a matter such as the jurisdictional challenge it would be very difficult to come to a proper finding if the employer chose to simply assert the fact without being prepared to then lead sufficient evidence.  In my view it is open for the Commission to direct that such evidence be put by the employer.  This may be particularly so in cases where, as often occurs in this jurisdiction, the parties are unrepresented.  In these circumstances, the issue of direction by the Commission is one of degree but could not extend to the Commission organising the case for one party.  Clearly also the Commission has a role to raise the question of jurisdiction where the Commission considers it might be an issue, even when parties have not raised the issue or have conceded the issue (see The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Roman Catholic Bishop of Bunbury Chancery Office and Others 87 WAIG 1147 at 14 and 15).  Nevertheless, this does not alter the question of the onus of proof.

31       Further, in Springdale Comfort Pty Ltd and Building Trades Association of Unions of Western Australia (Association of Workers) and Others (1987) 67 WAIG 466 at 467 this question was not argued, however, the Full Bench stated:

“As to the onus of establishing that the Commission has jurisdiction, it was conceded in these proceedings that that onus rests with the party making application before the Commission and I would think that that is a matter beyond doubt.  In accordance with that outline of the principles involved I turn to consider the alleged errors.”

32       In Gregory John Clarke v Stirling Skills Training Inc Trading as Jobwest (2002) 82 WAIG 621 at 622 the then Senior Commissioner stated:

“Firstly, it is Mr Clarke who is claiming that this Commission has the jurisdiction to deal with the claim that he has lodged in it.  Therefore, it is Mr Clarke who bears the onus of proving that the Commission has the jurisdiction to deal with the claim.  It is not for the respondent to the application to prove that the Commission does not have jurisdiction.  Rather, once the respondent has indicated a challenge to jurisdiction, and given the grounds for that challenge, the onus lies upon Mr Clarke to prove that the Commission does have jurisdiction.”

33       I accept that I have applied the wrong test.  Whether my error in applying the wrong test as expressed in paragraph 61 of my Reasons would lead to a different result I do not know.  However, it clearly had an impact on my decision and hence justice requires and the administration of justice is best served by reopening the hearing.  Therefore I will issue an order to reopen the hearing and my Associate will contact the parties shortly to list a directions hearing.  At that directions hearing I will also ask the parties to address me on the requirements for issuing orders pursuant to s7 and 8 of the Judiciary Act 1903 (Commonwealth) (see the Full Bench decision in the ALS case [paragraphs 10 and 11] and the decision of Gray, J in Danielsen v Onesteel Manufacturing Pty Ltd and Another 224 FLR 319 at 326-328).

34       I have two further points to cover.  At paragraph 60 of my earlier Reasons I expressed doubt as to whether, should the substantive hearing be delayed, the applicant would be capable of achieving reinstatement.  These comments were said in the context of considering whether to require the KLC to produce further evidence and hence delay the substantive hearing.  I do not wish those brief Reasons to be taken as if I had any concluded thoughts on that issue.  The applicant has always sought and continues to seek reinstatement.  That is the primary remedy in matters pursuant to s29(1)(b)(i) of the Act and that remedy of course remains open.

35       Finally, the applicant in this matter in their submissions stated at paragraph 4 as follows:

“At first instance it was more or less assumed, rightly, that if the $3.9/4.8 million was payment for services rendered then the KLC should be regarded as a trading corporation and hence beyond the jurisdiction of the Commission.” (my emphasis)

Needless to say the factors expressed by the majority of the IAC in the ALS case at paragraph 68 need to be balanced, in particular the purpose and activity of the organisation, the nature of the trading activities and whether they are substantial or sufficient to justify the description of “trading corporation”.