2026 WAIRC 00016
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00016



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 17 DECEMBER 2025



DELIVERED
:
FRIDAY, 16 JANUARY 2026



FILE NO.
:
M 82 OF 2025



BETWEEN
:
ESME DARLINGTON-THOMAS


CLAIMANT



AND

ELGAS LIMITED
FIRST RESPONDENT






AND





ZR RESOURCES PTY LTD


SECOND RESPONDENT

CatchWords : INDUSTRIAL LAW – Application by a party to strike out claim – Whether there is a real issue of fact or law to be tried – Whether the first respondent is an employer for the purposes of the Long Service Leave Act 1958 (WA) – Consideration of labour hire arrangement

Legislation : Long Service Leave Act 1958 (WA)
Industrial Relations Act 1979 (WA)
Industrial Magistrates (General Jurisdiction) Regulations 2005

Case(s) referred
to in reasons: : Anthony v Mineral Resources Ltd [2024] FWC 414
FP Group Pty Ltd v Tooheys Pty Ltd [2013] FWCFB 9605; (2013) 238 IR 239
Baker Hughes Australia Pty Ltd v Venier [2016] WAIRC 843; (2016) 96 WAIG 1488
Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; (2011) 209 IR 263
Abakir v Cleanaway Operations Pty Ltd [2023] FWC 3448
United Voice WA v The Minister for Health [2011] WAIRC 01065; (2011) 91 WAIG 2337
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983)154 CLR 87
Whitehall Holdings Pty Ltd v Ravi Nominees Pty Ltd (Unreported,
WASCA, Library No 9189, 13 December 1991)
Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76
Shilkin v Taylor [2011] WASCA 255
Miller v Minister of Pensions [1947] 2 All ER 372, 374
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362

Result : The application is and be granted
The claim against the first respondent is struck out
Representation:
Claimant : Self-represented
First respondent : Mr R. Malcolm (of counsel) and with him Ms E. Hartley (of counsel)
Second respondent : No appearance (excused)



REASONS FOR DECISION
Background
1 Esme Darlington-Thomas (the claimant) claims an entitlement of an amount allegedly owed in respect of long service leave under the Long Service Leave Act 1958 (WA) (the Act). The claimant claims that Elgas Limited (the first respondent) and ZR Resources Pty Ltd (the second respondent) are ‘jointly responsible for ensuring the entitlement is paid’ (the Claim).
2 The claimant describes the first respondent as the ‘host company’ and the second respondent as the ‘Labour Hire Company’. The Claim alleges the claimant began employment at the first respondent on 26 March 2018 via another labour hire company, Programmed, before the second respondent took over the ‘contract’ in October 2023.
3 The claimant says her contract was terminated on 8 May 2025.
4 The first respondent denies ever employing the claimant and says the claimant was assigned to the first respondent in accordance with a commercial agreement between Zoom Recruitment Pty Ltd (Zoom) and the first respondent dated 4 September 2023.
5 The first respondent says the claimant’s case outline suggests she was constructively dismissed from her employment by the second respondent, which indicates that on her own case, the second respondent was her employer.
6 The first respondent denies it employed the claimant and says the claimant is employed, and continues to be employed, by Zoom.
7 The second respondent says the first respondent is a client of Zoom and utilises Zoom’s services as a labour hire provider.
8 The second respondent says the claimant has been employed by Zoom as a casual employee since 4 September 2023 pursuant to a Casual Employment Agreement (CEA) and has been assigned by Zoom to the first respondent’s premises in Canning Vale to provide accounts receivable services.
9 The second respondent says the claimant’s engagement ended at the first respondent’s premises but the claimant’s employment relationship with Zoom did not end and has not ended. The claimant has indicated that she is available for engagements allowing her to work remotely and not on site, and Zoom has indicated that if an assignment comes up consistent with her stipulation, then Zoom can offer her that work.
The First Respondent’s Application and Orders Sought
10 On 14 November 2025, the first respondent lodged an application seeking, pursuant to reg 5 and reg 7(1)(iv) and (r) of the Industrial Magistrates Court (General Jurisdiction) Regulations 2005 (WA) (the IMC Regulations), the Claim be struck out as it relates to the first respondent because it fails to:
(a) disclose a reasonable cause of action within the Industrial Magistrates Court’s (IMC) jurisdiction; and
(b) provide reasonable notice of the case the first respondent is required to meet such that the Claim cannot be responded to. Form 6 & 7 – Application for Orders lodged 14 November 2025.

(the Application).
11 The first respondent relies upon an affidavit of Samantha Ritter (Ms Ritter) sworn on 6 November 2025 in support of the Application (Ritter Affidavit).
12 The claimant opposes the Application.
13 Schedule I of these reasons outlines the jurisdiction, standard of proof, practice, and procedure of the IMC in determining this case.
The First Respondent’s Evidence
14 Ms Ritter is employed by BOC Limited (BOC) as a Human Resources Manager.
15 In the Ritter Affidavit, she deposes to the following:
(a) BOC is part of the Linde Group and BOC is the company and trading name in Australia;
(b) the first respondent is an Australian company that is 100% owned by BOC;
(c) her role at BOC sits across all BOC entities, including the first respondent;
(d) all of the human resources records for BOC are held in one single SAP system and all payroll records are within one ADP payroll system;
(e) a search of the BOC SAP system, including for the first respondent, shows there are no employment records for the claimant. If the claimant was ever an employee of the first respondent or any BOC company there would have been an employment file with her contract, employment records, such as bank details, remuneration reviews and performance evaluations;
(f) none of these records exist for the claimant;
(g) the BOC payroll team confirm that the claimant has never received wages from the first respondent or any BOC entity;
(h) BOC has a Labour Hire Contract with Zoom. Zoom provided the claimant to the first respondent under this contractual agreement. Zoom is not an associated entity of BOC or the first respondent; and
(i) a tax invoice from Zoom to the first respondent includes payment for services by the claimant and three other labour hire personnel. A copy of the tax invoice is annexed to the Ritter Affidavit at SR-01.
16 The tax invoice at SR-01 shows the claimant’s services in administration being charged to the first respondent at the rate of $51.4196 per hour for 14.5 hours. Other services for three other people are also charged on the same tax invoice.
The Claimant’s Evidence
17 The claimant claims an amount based on an ordinary hourly rate of $41.21.
18 The claimant responded to the Application and attaches various documents she says demonstrates factual disputes rendering the Application ‘unsuitable for summary disposition’.
19 The claimant refers to email correspondence in September 2023 between her and the first respondent discussing her performance, duties, hours and workplace issues (the September 2023 Emails). She also refers to email correspondence in June 2025 between her and Zoom discussing the provision of historical payroll and service records from the first respondent for the purpose of [Zoom] calculating long service leave entitlements (the June 2025 Emails).
20 In the September 2023 Emails, the claimant requests the first respondent for a pay review and explains why. She also informs the first respondent that she ‘will be requesting full time through Zoom’.
21 In response, a Regional Manager of the first respondent congratulates the claimant’s performance and advises they are ‘happy to support the process of your pay review’, however, they explain the process for this to occur. The Regional Manager also states, ‘happy to support a full time placement via Zoom, will just need to work out their policies however I don’t think it will be an issue’.
22 In the June 2025 Emails, the claimant informs Zoom and the first respondent of her entitlement to long service leave. Relevant to the Claim, she states:
I worked at Elgas continuously from March 2018 to May 2025, initially under one labour hire provider and then through Zoom Recruitment, performing the same duties, at the same site, with the same hours and expectations throughout. I believe this constitutes continuous service for the purpose of long service leave.
23 A Payroll Manager at Zoom responds:
We are following up with Elgas for your payroll data from your time with the previous agency, so that we can determine your eligibility and calculate your Long Service Leave if applicable.
The Parties’ Contentions
24 The first respondent submits the Claim has no prospect of success because to establish the Claim against the first respondent the Court would need to determine the claimant and the first respondent were employee and employer. The first respondent says it is not the claimant’s employer for the purposes of the Act or at all.
25 The commercial relationship between the first respondent and Zoom was not a ‘sham’ where the ‘commercial authenticity’ and ‘commercial practicality’ can be seen in the margin paid over the wages paid by Zoom to the claimant Anthony v Mineral Resources Ltd [2024] FWC 414 (Mineral Resources) at [37] and FP Group Pty Ltd v Tooheys Pty Ltd [2013] FWCFB 9605; (2013) 238 IR 239 (Tooheys) at [22].
. That is, the first respondent paid by tax invoice an amount of $51.4196 per hour to Zoom of which Zoom paid the claimant $41.21 per hour.
26 Control over an employee is less relevant in the context of a labour hire arrangement where day to day control is a ‘common feature’ of that arrangement Mineral Resources at [49].
.
27 The first respondent has pleaded that Zoom is the claimant’s employer, and the principle of joint employment is not recognised in Australia. This is consistent with the particulars in the Claim where the claimant refers to the first respondent as the ‘host company’ and the second respondent as the ‘Labour Hire Company’.
28 The first respondent has no records, commonly held by employers, demonstrating that it employed the claimant, including any contract of employment.
29 The September 2023 Emails and June 2025 Emails do not rise to a level demonstrating an employee and employer relationship between the claimant and the first respondent.
30 The claimant submits the cases relied upon by the first respondent made determinations on the employment relationship at the conclusion of hearing all of the evidence, rather than at a preliminary point of the litigation.
31 The claimant submits the first respondent had ‘structural control’ or day to day control over her work in the workplace from the time she commenced with a labour hire company and then Zoom took over the contract with the first respondent. The claimant says the second respondent or Zoom functioned as a payroll only.
32 The claimant submits the September 2023 Emails and June 2025 Emails are evidence of ‘employment records’ held by the first respondent and there will be other employment records once the discovery process commences.
33 The claimant says there are significant factual issues in dispute (requiring discovery and evidence), including the control and direction exercised by the first respondent over her work, her duties and performance and ongoing placement at the first respondent. She refers to the first respondent possibly having documents relevant to her work, training and payroll.
34 The claimant submits the Application is premature and the Claim is neither hopeless nor bound to fail. There is a reasonably arguable claim as against the first respondent.
The Act
35 The entitlement to long service leave under the Act is set out in s 8(1) of the Act:
An employee is entitled in accordance with, and subject to, the provisions of this Act, to long service leave on ordinary pay in respect of the length of continuous employment calculated under section 6A with the same employer [emphasis added].
36 Relevant to the Claim, s 8(3) of the Act provides that where an employee has completed between seven and 10 years of continuous employment and the employment is terminated, other than for serious misconduct, the employee is entitled to a proportionate amount of leave on the basis of 8 2/3 weeks for 10 years of continuous employment.
37 The effect of s 9(2) and (2A) of the Act is that upon termination of employment where the employee is entitled to take the long service leave under s 8(3), the employer must pay the full amount the employee is entitled to of the leave not taken.
38 The obligation to pay the full amount is on the employer in respect of an employee.
39 Section 4 of the Act defines employee to mean:
(a) …
(i) a person who is employed by an employer to do work for hire or reward, including as an apprentice; or
(ii) a person whose usual status is that of an employee;
and
(b) includes a casual or seasonal employee[.]
40 Relevant to the Claim, s 4 of the Act defines employer to mean:
(a) a person Section 5 of the Interpretation Act 1984 defines ‘person’ to mean, relevantly, a company.
or public authority as defined in the [Industrial Relations Act 2009 (WA)];
…
(c) a related body corporate of the employer if the employer is itself a body corporate, where related body corporate of an employer has the meaning given in s 9 of the Corporations Act 2001 (Cth).
41 Section 6 of the Act defines continuous employment, which for the most part deals with paid or unpaid absences from the workplace. Potentially relevant to the Claim is s 6(5) where a casual employee has continuous employment with an employer despite absences from the workplace under the terms of the employment or any other absence after the which the employee has, due to the regular and systemic nature of the employment, a reasonable expectation of returning to work for the employer.
42 Further, under s 6(6), a casual employee has continuous employment with an employer despite being employed by the employer under two or more contracts of employment or is also employed another person during the period of employment by the employer.
43 Part II, Division 3 of the Act Inserted as part of the amendments in the Industrial Relations Legislation Amendment Act 2021 (the IR Amendment Act).
deals with the transfer of business from an old employer to a new employer where there is a connection between the old and the new employer, for example, the sale of a business, and the employee (now referred to as a transferring employee) is performing the same or substantially the same work for the new employer.
44 The Full Bench of the Western Australian Industrial Relations Commission in Baker Hughes Australia Pty Ltd v Venier (2016) WAIRC 843 (Baker Hughes) considered the meaning of ‘one and the same employer’ in s 8(1) of the Act, as it was prior to amendments in the IR Amendment Act.
45 The IR Amendment Act introduced a suite of amendments to the Act, and in doing so also amended the words in s 8(1) from ‘one and the same employer’ to ‘the same employer’, consistent with amending the definition of employer in s 4 from ‘persons, firms, companies and corporations’ to ‘a person or public authority’ or ‘a related body corporate’.
46 The IR Amendment Act also amended what constitutes continuous employment as it relates to casual or seasonal employment referred to above in s 6(6) of the Act.
47 The Full Bench in Baker Hughes found that the words continuous employment with ‘one and the same employer’ means continuous employment with a single employer Baker Hughes at [90] per Smith A/P (with whom Scott CC agreed).
.
48 Notwithstanding Baker Hughes was a decision prior to the amendment of the words in s 8(1) and the circumstances concerned the prior employment by related body corporates; the reasoning and principles remain relevant to the current proceedings.
49 Further, if anything, the amended definition of employer by the IR Amendment Act serves to strengthen the findings in Baker Hughes and the deletion of the words ‘one and’ in s 8(1) does not, in my view, detract from that or in some way now construes employer to mean more than one employer or joint employers.
50 This is also consistent with other amendments in the IR Amendment Act as it relates to the transfer of business resulting in the employment by an employee being taken to be a single period of continuous employment and the new employer is taken to be the employee’s sole employer for the entire period Part II, Division 3, s 7H.
.
51 The clarification of continuous employment for casual or seasonal employees, particularly s 6(6) of the Act, recognises the nuances of casual employment, namely casual employees may be employed as a result of a series of discrete contracts or on a single contract, both of which may satisfy the continuous employment requirement. Additionally, casual or seasonal employees may have other employment but, again, may satisfy the continued employment requirement with a particular employer. In my view, this amendment does not alter the principle founded in Baker Hughes or the fundamental requirement in s 8(1) of the Act, as it relates to the entitlement relevant to a single employer.
52 That is, the obligation to pay the full amount for any long service leave entitlement which arises under s 9(2) and s 9(2A) of the Act is with a single employer.
Labour Hire Arrangements
53 The relevant legal principles for labour hire arrangements include Abakir v Cleanaway Operations Pty Ltd [2023] FWC 3448 at [63] (referred to in Mineral Resources at [37]).
(citations omitted):
a) The mere existence of an arrangement under which a first company provides labour to a second company does not point to the second company being the employer of the labour so provided;
b) The interposition of a labour hiring agency between its clients and the workers it hires out to them does not result in an employer-employee relationship between the client and the worker;
c) A critical consideration in determining whether the formal arrangements represent the reality of the situation is what might be described as the ‘commercial authenticity’ of those arrangements; and
d) There is no concept of dual employment known to Australia[n] law whereby both the labour supplier and the client are concurrently employers of the worker in the triangular labour hire arrangement.
54 It has been recognised that a fundamental feature of labour hire arrangements is the high degree of control the hirer has over the performance of work of the hired workers and the ability to integrate the hired worker into the existing work systems Tooheys at [29].
.
55 It was further recognised that labour hire arrangements invariably involve the hirer being able to communicate directly to the hired worker instructions concerning the performance of work without the interposition of the labour hire company Tooheys at [29].
.
56 Conceptually, dual employment may not be as definitive as suggested in Tooheys. That is, in Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; (2011) 209 IR 263 (Eastern Colour), Collier J referred, at [77], to a Full Bench of the Australian Industrial Relations Commission in Morgan v Kittochside Nominees Pty Ltd (2002) 117 IR 152, where the Commissioners considered that ‘no substantial barrier should exist to accepting a joint employment relationship might be found and given effect for the certain purposes under the [Workplace Relations] Act’ (at [75]).
57 Notably, one of the issues for determination in Eastern Colour was an application to strike out pleadings as they related to the named respondents being jointly and severally liable to make payments of certain entitlements because they were joint employers of the relevant employees.
58 Relevant to the Application, Collier J suggested, at [78], there was scope ‘in Australian law for a claim that multiple entities can jointly employ a person. Whether such a claim can be substantiated, either on particular facts or on the law following proper argument at a hearing, is a different question’. In that context, his Honour considered it was premature to find in the interlocutory application that the relevant parts of the claims should be struck out as disclosing no cause of action known to law.
59 However, his Honour, at [80], did strike out the same paragraphs because of the absence of material facts in support of the contentions relied upon by the claimants. He did so where there were no facts pleaded which would or could support joint employment, such as joint and several liability in respect of workplace accidents, insurance, workers’ compensation and payroll tax. Similarly, there were no material facts pleaded as to whether the claimants contend an employment contract between the employee and each of the employers separately or all employers or whether each employer had different rights or obligations.
Determination
60 The IMC has the power to strike out (or summarily dispose of) a claim on the basis that there is no reasonable prospect of success. United Voice WA v The Minister for Health [2011] WAIRC 01065; (2011) 91 WAIG 2337.
The IMC’s duties in dealing with cases are set out in reg 5 of the IMC Regulations. Regulation 7 of the IMC Regulations sets out what the IMC may do for the purpose of controlling and managing cases and trials, including, at reg 7(1)(h) ‘order that an issue not be tried’, and at reg 7(1)(r) ‘take any other action or make any other order for the purpose of complying with reg 5’. This would also include striking out part of a claim for the same reasons.
61 Therefore, the IMC has the power to make the order sought by the first respondent if it concludes the Claim is so clearly untenable that it could not possibly succeed and, if that circumstance exists, to dismiss the claim so as to deal with the case efficiently, economically and expeditiously and to ensure that the IMC’s resources are used as efficiently as possible. Regulation 5(2)(a) and (c) of the IMC Regulations.

62 The power to order the strike out of the whole a claim is one that should be exercised with great care. Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87.

63 A party has an obligation to provide particulars of an arguable claim (as the case may be) and to provide a statement of facts which go to show that it is arguable. Whitehall Holdings Pty Ltd v Ravi Nominees Pty Ltd (Unreported, WASCA, Library No 9189, 13 December 1991).

64 Disposal of a claim summarily ‘will never be exercised unless the party’s claim is so obviously untenable that it cannot possibly succeed’. Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, 92 (see also Shilkin v Taylor [2011] WASCA 255 [29]).

65 Notwithstanding the early stage of the Claim, the claimant’s claim as it relates to the first respondent should be struck out for the following reasons:
· the Claim pleads the first and second respondents are ‘jointly responsible’ for payment of any long service leave entitlement under the Act. However, there are no facts pleaded which support a principle of ‘joint responsibility’ or ‘joint employment’ by the first and second respondents. Accepting the first respondent’s evidence, it holds no records commonly associated with establishing an employment relationship between an employer and an employee;
· the payment of any long service leave entitlement under s 9 of the Act is liable to be paid by an employer. Under the Act, the liability of an employer is with a single employer. Therefore, for the claimant to be successful as against the first respondent, she would need to prove on the balance of probabilities the first respondent, and only the first respondent, was her employer;
· the first respondent’s evidence is that it did not ever employ the claimant. To that end, the first respondent’s records, including the example tax invoice, are consistent with a bona fide commercial labour hire arrangement with a third party, Zoom, who placed the claimant at the first respondent’s premises;
· the claimant cannot say if there are, in fact, any employment records held by the first respondent and wants to rely upon the disclosure procedure to ‘discover’ records that may support her assertion the first respondent, along with Zoom, is ‘jointly responsible’ for her claimed entitlement. However, under the Act a single employer is liable for any long service leave entitlement;
· the September 2023 Emails and June 2025 Emails do not support the claimant being employed by the first respondent. The content of the September 2023 Emails congratulates the claimant on her performance and supports her pay review but also says that it will support a full-time placement via Zoom, consistent with the claimant’s placement at the first respondent being by labour hire agreement between the first respondent and Zoom. In congratulating the claimant, the first respondent is not carrying out a performance review, which the first respondent deposes that it does not have in its possession in any event. The content of the June 2025 Emails is the claimant’s demand for payment and Zoom responding to the demand saying it will liaise with the first respondent to find out further information. The principle of continuous employment raised in the claimant’s demand is not the same as who is liable for the payment of any long service leave entitlement under the Act;
· the second respondent has admitted Zoom employed and continues to employ the claimant under a CEA. Where Zoom purchased the business who originally employed the claimant, then Part II, Division 3 of the Act may apply to the claimant. In that case, if Zoom does not have all the relevant employment records Noting s 7I of the Act also requires the transfer of employment records for transferring employees.
, then it is logical it may approach third parties to piece together information to determine what, if any, liability it has, which is indicated in the June 2025 Emails; and
· given the admission made by the second respondent that Zoom employed and continues to employ the claimant and a single employer is liable to pay an amount for long service leave, the disclosure process is highly unlikely to yield any information that would displace the second respondent’s admission.
66 The ‘structural control’ referred to by the claimant is, again, not inconsistent with labour hire arrangements, and, in my view, does not displace the second respondent’s admission that Zoom is or was the claimant’s employer or the existence of a labour hire agreement between the first respondent and Zoom.
67 That is, I am satisfied the first respondent is, and was, not the claimant’s employer where the first respondent had a bona fide commercial labour hire arrangement with Zoom for the claimant’s services to the first respondent. In being so satisfied, I am also satisfied the Claim as it relates to the first respondent cannot succeed.
68 I observe that striking out a claimant’s claim, or part thereof, particularly where the party is self – represented, is a serious step and should be reserved for a clear case. The Claim as it relates to the first respondent is, in my view, a clear case. It is also a clear case that permitting the claimant to reframe the Claim against the first respondent will not cure the primary issue of the lack of an employment relationship between the claimant and the first respondent under the Act.
69 The Claim has not been entirely struck out and remains against the second respondent, although an amendment to the named party may be necessary. There appears to be further issues between the claimant and the second respondent (or Zoom) regarding whether the claimant continues to be employed by the second respondent (or Zoom) and how continuous employment should be accounted for—as a possible transferring employee under a new employer—for the purpose of determining whether any entitlement to long service leave has crystallised under the Act. However, these are matters for the claimant and the second respondent.
Outcome
70 The first respondent’s application to strike out those parts of the Claim as it relates to the first respondent is and be granted.
71 Pursuant to reg 5(2)(a), reg 5(2)(c) and reg 7(1)(r) of the IMC Regulations, the Claim as it relates to the first respondent is struck out.



D. SCADDAN
INDUSTRIAL MAGISTRATE



SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court (WA)
Jurisdiction
[1] The IMC has exclusive jurisdiction to hear and determine all questions and disputes in relation to rights and liabilities under the Act, including whether a person is or is not an employee or employer to whom the Act applies, whether an employee is or has become entitled to long service leave, and the ordinary rate of pay of an employee. Section 11(1)(a), s 11(1)(b) and s 11(1)(c) of the Act and s 81AA of the Industrial Relations Act 1979 (WA) (IR Act).

Burden and Standard of Proof
[2] In an application under the Act, the claimant carries the burden of proving the claim. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not,’ the burden is discharged, but, if the probabilities are equal, it is not.
[3] Where in this decision it is stated that a finding has been made, the finding is made on the balance of probabilities. Where it is stated that a finding has not been made or cannot be made, then no finding can be made on the balance of probabilities.
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[4] Subject to the provisions of the Act and the IR Act, the procedure of the IMC relevant to claims under the Act is contained in the IMC Regulations. Notably, reg 35(4) of the IMC Regulations provides the Court is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.
[5] In Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observation:
The tribunal is not bound by the rules of evidence and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force. The drawing of an inference without evidence is an error of law. Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence [40]. (citations omitted)