Guest v Kimberley Land Council Aboriginal Corporation - [2010] WASCA 53

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION: GUEST -v- KIMBERLEY LAND COUNCIL ABORIGINAL CORPORATION [2010] WASCA 53

CORAM: PULLIN J
BUSS J
KENNETH MARTIN J

HEARD: 4 MARCH 2010

DELIVERED : 25 MARCH 2010

FILE NO/S: IAC 3 of 2009

BETWEEN: KRYSTI GUEST
Appellant
AND
KIMBERLEY LAND COUNCIL ABORIGINAL CORPORATION
Respondent

ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram :RITTER AP

SCOTT C
MAYMAN C

Citation :GUEST v KIMBERLEY LAND COUNCIL [2009] WAIRC 668; [2009] WAIRC 1155
File No :FBA 4 of 2009

Catchwords:

Industrial law - Appeal against dismissal of appeal - Whether court has jurisdiction to entertain appeal - Turns on own facts and circumstances

Legislation:

Commonwealth Constitution, s 51(xx), s 109
Industrial Relations Act 1979 (WA), s 7(1), s 34, s 49(2), s 90(1)(b)
Judiciary Act 1903 (Cth), s 78B
Workplace Relations Act 1996 (Cth), s 4(1), s 5, s 6, s 16

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: Derek Schapper

Case(s) referred to in judgment(s):

Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; (1999) 95 FCR 292
Gerhardy v Brown (1985) 159 CLR 70
Guest v Kimberley Land Council [2009] WAIRC 1155
Guest v Kimberley Land Council [2009] WAIRC 150
Guest v Kimberley Land Council [2009] WAIRC 443
Guest v Kimberley Land Council [2009] WAIRC 668

PULLIN J: This is an appeal by the appellant against an order of the Full Bench of the Western Australian Industrial Relations Commission (WAIC), whereby the Full Bench dismissed an appeal against an order of Commissioner Wood that 'the hearing of jurisdiction be reopened'.
The background is as follows. The appellant was employed by the respondent until she was dismissed on 27 October 2008. The appellant filed an application with the Commission alleging that the termination of her employment was harsh, oppressive and unfair and sought a reinstatement order. The respondent denied the allegation of unfair dismissal but also raised an issue about the jurisdiction of the Commission to hear and determine the application. It did this by claiming that it was a trading corporation and therefore a 'constitutional corporation' as defined in the Workplace Relations Act 1996 (Cth) (WRA). If it were such an entity, then the Commission did not have jurisdiction to hear and determine the application.
Commissioner Wood decided he would consider the jurisdiction issue at a preliminary hearing. The commissioner conducted the hearing and then published reasons in which he concluded that the respondent bore the onus of proving that it was a constitutional corporation; that it had not discharged the onus; and that in consequence the Commission had jurisdiction: Guest v Kimberley Land Council [2009] WAIRC 150. The respondent filed an application for leave to appeal to the Full Bench against that decision pursuant to s 49(2) of the Industrial Relations Act 1979 (WA) (IRA). The Full Bench pointed out that there had been no award, order or declaration as required by s 34 of the IRA and the appeal was adjourned to allow the respondent to consider its position. The respondent discontinued that appeal.
The respondent then applied to Commissioner Wood to reopen the hearing concerning jurisdiction. Commissioner Wood heard the application and made the order which was the subject of the appeal to the Full Bench, which resulted in the order, which is now the subject of the appeal to this court. Commissioner Wood's reasons for the order appear in Guest v Kimberley Land Council [2009] WAIRC 443. Those reasons reveal that Commissioner Wood reopened the hearing because he decided he had erred in his earlier reasons in deciding that the onus was on the respondent to prove that it was a trading corporation and therefore a constitutional corporation. Instead the commissioner found that the onus was on the appellant to establish that the Commission had jurisdiction.
The appellant appealed against the order of Commissioner Wood reopening the hearing. The appeal came before the Full Bench. It granted leave to appeal pursuant to s 49(2a) of the IRA, but then made an order dismissing the appeal. That is the order appealed against in these proceedings. The Full Bench in its reasons (see Guest v Kimberley Land Council [2009] WAIRC 668; [2009] WAIRC 1155) in effect, held that the commissioner erred in both his decisions. The Full Bench said that the jurisdictional issue did not turn upon, and could not be determined, by considering who bore the onus of proof.
In the course of the Full Bench's reasons, the Acting President referred to provisions of the Commonwealth Constitution and the WRA to explain why the Commission would be deprived of jurisdiction if the respondent was found to be a trading corporation. These included a reference to s 51(xx) and s 109 of the Constitution and s 4(1), s 5, s 6 and s 16 of the WRA, the combined effect being that if the respondent is a trading corporation, the Commission has no jurisdiction.
The Acting President said at [82]:
(c)The determination of the question of whether the KLC was a trading corporation should have been determined as a constitutional or statutory fact in the way described by Brennan J in Gerhardyv Brown (1985) 159 CLR 70, 141 ‑ 142.
The Acting President added at [84]:
This is because although Ms Guest has established that the Commissioner did err in his consideration of the onus of proof issue, this does not mean that the jurisdictional question should not have been reopened … If the appeal is dismissed then the matter will remain with or be returned to the Commissioner who can then act in accordance with the order which was appealed against.
The Full Bench adjourned to allow further submissions to be made as to the appropriate course and for the appropriate orders to be made. After hearing submissions, the Full Bench published supplementary reasons (Guest v Kimberley Land Council [2009] WAIRC 1155) in which Ritter AP said:
The KLC submitted, as postulated at [84] of my reasons, that leave to appeal should be granted and the appeal dismissed. In summary, this was because:
(a)Both decisions made by the Commissioner at first instance were in error because they were determined by the application of an onus of proof.
(b)Whether or not the KLC is a trading corporation is a constitutional or statutory fact and the evidence to date does not allow a satisfactory finding to be made.
(c)The unsatisfactory state of the evidence cannot be overcome or avoided by resort to an onus.
(d)The re‑opening of the hearing and the taking of additional evidence is the only way in which the present uncertainty about whether the KLC is a trading corporation can be overcome [3].
Ritter AP recorded the submissions of the appellant, these being to the effect that the Commissioner was in error in deciding to reopen the question of jurisdiction. In making this submission the appellant contended that the Full Bench erred in deciding that the question of whether the respondent is a trading corporation should be determined as a constitutional or statutory fact in accordance with the process described by Brennan J in Gerhardyv Brown (1985) 159 CLR 70 [4].
Ritter AP stated that he remained of the opinion that the issue which had to be determined by the commissioner was squarely within the observations made by Brennan J in Gerhardy. Ritter AP then affirmed his preliminary view that leave to appeal should be granted and the appeal dismissed. Commissioners Scott and Mayman agreed. Orders were made accordingly.
The appellant's grounds of appeal as amended at the hearing read:
The decision of the Full Bench is erroneous in law on the following grounds:-
1.The Full Bench erred in the construction or interpretation of the term 'trading corporation' in s51(xx) of the Constitution and s4 and s6 of the Workplace Relations Act 2006 [sic] (Cth) by determining that, in accordance with the reasoning of Brennan J in Gerhardy v Brown 159 CLR 70 at 141‑142 and subsequent authorities quoted by the Full Bench, the fact of whether the Respondent is a trading corporation:
a.is a 'constitutional fact' and not an ordinary jurisdictional fact between the parties; and
b.as a 'constitutional fact' is governed by exceptional rules of evidence and not ordinary rules of civil evidence.
2.The Full Bench erred in the construction and interpretation of the term 'trading corporation' in s4 and s6 of the Workplace Relations Act 2006 [sic] (Cth) and s51(xx) of the Constitution by ordering that the appeal be dismissed and the matter returned to a single Commissioner to determine whether the Respondent is a trading corporation in accordance with its Reasons for Decision as to 'constitutional facts' and exceptional rules of evidence and procedure per Brennan J in Gerhardy v Brown 159 CLR 70 at 141-142.
3.The Full Bench erred in its interpretation or construction of 78B of the Judiciary Act 1903 (Cth) by finding that it did not apply to the Full Bench's request for supplementary submissions on the interpretation or construction of the concept of 'constitutional fact' in general and the issue of whether or not the term 'trading corporation' was a constitutional fact or an ordinary fact in this matter.
This appeal notice is made pursuant to section 90(1)(b) of the Industrial Relations Act 1979 (WA) on the ground that the order and reasons of the Full Bench identified in this notice are erroneous in law in that there has been an error in the construction or interpretation of the s4 and s6 of the Workplace Relations Act 2006 [sic] (Cth) and s 51(xx) of the Constitution of Australia in the course of making the decision appealed against.
Section 90 of the IRA states that:
(1)Subject to this section, an appeal lies to the Court in the manner prescribed from any decision of the … Full Bench …
(a)on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decision is not an industrial matter;
(b)on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or
(c)on the ground that the appellant has been denied the right to be heard,
but upon no other ground.
The appellant relies only upon s 90(1)(b) and contends in her written submissions that:
15.The basis of this appeal is that the Full Bench's decision is erroneous in law in interpreting or constructing [sic] the statutory provision 'trading corporation' in s 51(xx) of the Constitution and s 4 and s 6(1)(a) of the WRA as a 'constitutional fact' as opposed to an ordinary fact between the parties. This erroneous interpretation then leads to the Full Bench's further legal error that the standard rules of evidence do not apply in determining the statutory term 'trading corporation' because such standard evidentiary rules may be suspended when determining a 'constitutional fact'.
This was repeated in the appellant's oral submissions. I do not accept the appellant's submission. The decision of the Full Bench was the order it made - see the definition of 'decision' in s 7(1) of the IRA. The order was 'the appeal is dismissed'. 'In the course of making the decision' (see s 90(1)(b) of the IRA), it is true that Ritter AP referred to the Constitution and statutory provisions identified above, but they were merely referred to in order to explain why the Commission would have no jurisdiction if the respondent was a trading corporation. There was no construction or interpretation of any of these provisions. Having explained why the Commission had no jurisdiction if the respondent was a trading entity, the Full Bench then decided the issue before it, which was how Commissioner Wood had to approach the task of determining whether the respondent was or was not a trading corporation. It held that this had to be determined in the manner referred to by Brennan J in the Gerhardy v Brown case. Thus, grounds of appeal 1 and 2 which assert an error in the construction or interpretation of s 51(xx) of the Constitution and s 4 and s 6 of the WRA have no merit.

Section 78B of the Judiciary Act

Ground 3 alleges an error in the interpretation or construction of s 78B of the Judiciary Act 1903 (Cth). The Full Bench rejected the submission that s 78B of the Judiciary Act applied and said at [7] of its supplementary reasons, that the points made in its earlier reasons were about the way in which the commissioner 'as a matter of onus and procedure' had decided to reopen the question of jurisdiction. The Full Bench said that the reasons also covered the basis upon which, and the way the Commission should receive evidence to determine whether a respondent is a trading corporation. The Full Bench said that those points did not involve a 'matter arising under the Constitution or involving its interpretation' which was the required criterion for the issuing of s 78B notices. The Full Bench also said that the characterisation of the respondent as a trading corporation or otherwise did not arise in the appeal. That is correct. No question about the construction or

interpretation of s 78B arose. Ground 3 has no merit. In this court the appellant asserted that s 78B notices should be issued. Section 78B does not apply just because a party asserts that it applies. It is the duty of the court to decide whether s 78B applies: Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; (1999) 95 FCR 292. For reasons given above, no matter arose under the Constitution or involved its interpretation and the court did not require s 78B notices to issue for that reason.

The appeal should be dismissed.
BUSS J: I agree with Pullin J. During oral submissions before this court, I asked the appellant to identify the statutory provision which she contended, for the purposes of s 90(1)(b) of the Industrial Relations Act 1979 (WA), had been wrongly construed or interpreted by the Full Bench of the Commission. The appellant referred to the definition of 'constitutional corporation' in s 4(1) of the Workplace Relations Act 1996 (Cth). The Full Bench did not construe or interpret this provision. No issue concerning the construction or interpretation of the definition of 'constitutional corporation', and no issue in relation to the proper application of that definition, is likely to arise in the pending proceedings before the Commission until the facts relevant to the characterisation of the respondent as a 'constitutional corporation' or not have been fully found. I am satisfied that this court does not have jurisdiction to entertain the purported appeal. It should be dismissed.
KENNETH MARTIN J: I agree with Pullin JA.
The appellant, in my view, has wholly failed to meet the requirements of s 90(1)(b) of the Industrial Relations Act, as regards her threshold obligation to identify a 'construction or interpretation' issue arising from any relevant quarter and sufficient to lay a jurisdictional foundation for an appeal to this court.
Rather, it seems to me that the appellant seeks to ventilate what is, in substance, a procedural grievance - over the manner in which the Commission would go about ascertaining whether or not the respondent is a trading corporation, from an evidentiary perspective. That substantive grievance does not identify an arguable construction or interpretation error arising in the course of the making of the decision by the Full Bench which is appealed.