Hillman v Bankstown Handicapped Children's Centre Association Incorporated [2008] NSWIRComm 64

Hillman v Bankstown Handicapped Children's Centre Association Incorporated [2008] NSWIRComm 64

The first respondent’s activities, both acquitted and non-acquitted, are public welfare services funded by government, not undertaken with a commercial or profit motive, not occurring in a market setting, and lack sufficient commercial indicia. Therefore, the first respondent is not a trading corporation for the purposes of s 51(xx) of the Commonwealth Constitution; accordingly, s 16(1) of the Workplace Relations Act 1996 (Cth) does not operate to exclude the Industrial Court’s jurisdiction.

Jurisdiction
Australia
Judgment Date
16 September 2008
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Full Bench Decision on Jurisdictional Challenge (notice of Motion)
Outcome
Notice of motion dismissed; Industrial Court retains jurisdiction
Legal Topics
['constitutional Corporations' 'jurisdictional Challenge' 'unfair Contracts' 'trading Corporation' 'workplace Relations Act S 16(1)' 'industrial Relations Act S 106']
['constitutional Law' 'industrial Law'] ['constitutional Corporations' 'jurisdictional Challenge' 'unfair Contracts' 'trading Corporation' 'workplace Relations Act S 16(1)' 'industrial Relations Act S 106']

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Full Bench Decision on Jurisdictional Challenge (notice of Motion)

Legal Issues

  1. 1 ["Whether the first respondent is a 'trading corporation' for the purposes of s 51(xx) of the Commonwealth Constitution and s 16(1) of the Workplace Relations Act 1996 (Cth)" 'Whether the Industrial Court has jurisdiction to hear the s 106 application under the Industrial Relations Act 1996']

Ratio Decidendi

The first respondent’s activities, both acquitted and non-acquitted, are public welfare services funded by government, not undertaken with a commercial or profit motive, not occurring in a market setting, and lack sufficient commercial indicia. Therefore, the first respondent is not a trading corporation for the purposes of s 51(xx) of the Commonwealth Constitution; accordingly, s 16(1) of the Workplace Relations Act 1996 (Cth) does not operate to exclude the Industrial Court’s jurisdiction.

Court Disposition

Notice of motion dismissed; Industrial Court retains jurisdiction

Orders

  • ['The notice of motion filed on 20 July 2007 is dismissed.' 'The applicant shall file and serve submissions as to costs within 14 days. Respondents have 14 days to reply. The applicant has a further seven days to respond. Costs will be dealt with on the papers unless a party requires an oral hearing. If consent is...